Commonwealth v. Sessions , 169 Mass. 329 ( 1897 )

Allen, J.

This is an indictment for obtaining money by false pretences. It set forth in substance that the defendant, on the 16th of July, 1896, at Worcester, with intent to cheat and defraud George L. Stevens, did falsely pretend and represent to him that she “ had theretofore secured and had positive evidence that moneys of one George H. Hill to the amount of §47,000 were deposited and held at the time aforesaid in some certain bank or banking institution or trust company in Providence,and that she “ had theretofore made some certain arrangement whereby, upon the payment of §5,000 to her ” by said Stevens, “ the president of said bank or banking institution, or of said trust company, would hold said moneys of said George H. Hill subject to attachment thereof on a certain petition for separate maintenance of Ella L. Hill,” daughter of said Stevens, which said petition was then pending. And said Stevens, “ believing the said false pretences and representations, . . . and being deceived thereby,” was induced by reason thereof to deliver, and did on said 16th of July, 1896, at Worcester, deliver to the defendant sundry United States Treasury Notes of the aggregate value of $5,000, sundry National Bank notes of the aggregate value of $5,000, sundry silver certificates of the United States of the aggregate value of $5,000, and sundry gold certificates of the United States of the aggregate value of $5,000, and she then and there received and obtained the same by means of the false pretences and representations, and with intent to cheat and defraud said Stevens. Whereas, as she then and there well knew, she “ had not theretofore secured and had not positive evidence that moneys of said George H. Hill to the amount of $47,000 were at the time aforesaid deposited and held in any bank or banking institution, or in any trust company, in Providence,” and she “ had not theretofore made any certain arrangement whereby, upon the payment of $5,000 to her” by said Stevens, “the president of said bank or banking institution, or of said trust company, in said Providence would hold said moneys ” of Hill subject, to attachment on said petition of said Ella L. Hill.

The defendant presented many objections to the form of this indictment. One of them is, that the negation of the truth of the pretences and representations should have been broader, and that the indictment should have contained an averment that in point of fact no such sum of money of Hill was on deposit. No decision is cited to us which holds that such averment is necessary. The representation was that she had secured and had positive evidence of such deposit, and that she had made an arrangement whereby, upon payment of $5,000 to her, the president of the bank or trust company would hold the moneys subject to attachment. The inducement held out to Stevens was, in effect, that upon payment of the money by him to her she would make it possible for him, acting in his daughter’s interest, to make an attachment of a large fund belonging to Hill. If Hill had secretly placed a large sum on deposit, and the fact was unknown to her, the existence of such deposit would be wholly immaterial. She was to put Mrs. Hill in the way of making an attachment, and she represented, according to the averment, that she had positive evidence of the deposit, and had already made an arrangement whereby it could be attached. The negation in the indictment was sufficient. It was explicitly to the effect that she had no such evidence, and had made no such arrangement, as she then and there well knew.

Nor was there any need of an averment that she did not deliver such evidence to Stevens, or that she refused to do so, or that Stevens did not receive such evidence, or that he ever requested the defendant to deliver such evidence to him; nor of a more distinct averment that she asked for the payment of the $5,000 by Stevens to her.

The averment that Stevens believed the false pretences and representations, if necessary at all, was sufficient, without saying that he believed them “ to be true.” This form of averment has been very common. Commonwealth v. Nason, 9 Gray, 125. Commonwealth v. Hooper, 104 Mass. 549. Commonwealth v. Coe, 115 Mass. 481. Commonwealth v. Parmenter, 121 Mass. 354. Commonwealth v. Stevenson, 127 Mass. 446 (1st count). Commonwealth v. Howe, 132 Mass. 250. Commonwealth v. Lee, 149 Mass. 179. Commonwealth v. Drew, 153 Mass. 588. Commonwealth v. Blanchette, 157 Mass. 486. It was not intended, in Commonwealth v. Dunleay, 153 Mass. 330, to intimate that, as a matter of technical pleading, it was necessary to add the words “to be true.”

All of the other objections taken to the form of the indictment must also be overruled.

The evidence as to other payments of money by Stevens to various persons was immaterial. The evidence for the Commonwealth tended to show that he procured the $5,000 alleged to have been paid to the defendant from one Durrell in Boston on July 16. The evidence on this subject was specific and precise, and there was nothing which tended to show that he procured it otherwise. Under this state of things, evidence that since July 1, and before he procured the money in question, he had been paying large sums of money to other persons had no relevancy.

Upon an indictment for obtaining money by false pretences, it is not necessary to prove that the full amount of money alleged in the indictment was so obtained. If an indictment charges the obtaining of $20,000, a conviction can be had upon proof of obtaining $5,000. Commonwealth v. Lee, 149 Mass. 179, 185. The rule is the same in an indictment for larceny. Commonwealth v. O'Connell, 12 Allen, 451.

It was no variance to prove that the money was actually received by the defendant in Boston, instead of in Worcester, as charged. By Pub. Sts. c. 213, § 21, it is expressly provided that this offence may be alleged to have been committed, and may be prosecuted and punished, in any county in which the false pretence was made.

The judge rightly refused to instruct the jury that if they should find that the representations of positive evidence, as alleged in the indictment, were true, they must return a verdict for the defendant. It appears that the defendant testified in her own behalf, and denied that she had ever secured any evidence that money belonging to Hill was deposited in any bank or trust company in Providence. There was no evidence tending to show that the representations were true. Under these circumstances, it was not open to the defendant to contend that the representations were true. See Clark v. Lowell, 1 Allen, 180.

The request for a ruling “ that there were no representations or false pretences when the money was paid, and that the variance is fatal,” was also rightly refused. There was evidence of false pretences made in Worcester the day before the money was paid, and these, if they induced the payment of the money, would support the averments of the indictment. The defendant’s refusal at Boston to tell Stevens the name of the president before she got the money did not show conclusively that the money was not paid in consequence of her false representations. According to the averment of the indictment, she represented that she had made an arrangement whereby, upon the payment of the money to her, the president would hold the moneys of Hill, so that they could be attached. The payment to her was to precede the action of the president, and her refusal to make any disclosure before getting it was quite consistent with her guilt.

The objections and exceptions of the defendant are all overruled.

Exceptions overruled.