Commonwealth v. Jacobson , 260 Mass. 311 ( 1927 )

Sanderson, J.

One of these indictments charges the defendants with conspiracy to steal; the other with stealing money of the value of more than $100, the property of the Commonwealth. They grow out of transactions connected with tuberculin tests of a herd of cattle made under the provisions of G. L. c. 129, § 33, as amended by St. 1922, c. 353, § 3, and the rules and regulations prescribed by the director of the division of animal industry. The indictment for larceny was nol prossed as to the defendant Young, who pleaded guilty to the indictment for conspiracy and was called as a witness by the Commonwealth in the trial of the defendant Jacobson on both indictments.

Jacobson was engaged in the business of selling meats and provisions and buying and selling cattle for slaughter. Young was cashier in a national bank. In the summer of 1923, Jacobson applied for a tuberculin test of his herd of cattle, in conformity with the provisions of G. L. c. 129, § 33, as amended, as a result of which compensation was paid to him by the Commonwealth. In 1925, he asked Young to sign an application for a tuberculin test of his (Jacobson's) cattle, giving as the reason for this request that he previously had one test in his own name and also saying something about the necessary length of time that must elapse before he could have another test made in his own name. Pursuant to this request, Young made application for a tuberculin test of forty-nine cattle described as "my herd,” signing his name thereto after the words "Owner’s authorized representative.” This application was given to Jacobson who forwarded it to the proper authorities in the division of animal industries at the State House. Subsequently a veterinarian from that department examined the herd then consisting of thirty-seven cattle; at this examination Jacobson was present and Young was not. All these cattle reacted to the test, and a numbered tag was attached to each. They were appraised, and their appraisal value entered on a blank form bearing the words "Owner Robert B. Young.” This appraisal was signed by the veterinarian and by Young as “Owner, or Authorized. Representative,” both certifying that the amounts recorded were fair and just estimates of the market values of the animals, and then forwarded to the division of animal industry.

Thereafter Young was requested to have the blank provided by the director for report of sales of reacting animals filled out and signed by the person to whom he had sold them. This was signed by Jacobson, and set forth, in substance, that Jacobson had purchased from Young the thirty-seven cattle that had reacted, and had actually paid Young or his agent therefor the amount set opposite each cow’s number, totaling $800. There had in fact been no such sale or payment. After this report of the proceeds of sale was received by the department, the amount thereof was deducted from the appraised value and the sum to be paid Young as reimbursement was computed. The tabulation thus made was sent to Young upon the form to be executed by the owner in making his claim for reimbursement, with a request to sign as owner and to fill out an appended form if anyone else had a claim on the animals. Upon receipt of this document, Young said to Jacobson in substance that he disliked to sign and verify the untrue statements therein contained. Upon Jacobson’s assurance that it was all right to execute the paper, that he was merely acting as Jacobson’s representative, Young filled out, signed, and swore to the claim, making therein the statements, without any foundation of fact to support them, that no person other than himself had any claim on the animals, and that the salvage figures were correct. When executed, this claim for reimbursement was handed by Young to Jacobson and forwarded to the division of animal industry. Later, Young received a check to his order from the Treasurer and Receiver General of the Commonwealth for $924, the amount stated in the claim. Young indorsed this check and gave it to Jacobson who deposited it in his bank account. Subsequently Young received a check for approximately the same amount from the Federal government as reimbursement from it for condemnation of the same herd as the result of the same tuberculin test. He likewise indorsed that check and gave it to Jacobson.

At the trial there was no contradiction of the testimony of Young, who was called as a witness for the Commonwealth, to the effect that he never owned the cattle in question or any others, never sold any cattle to Jacobson, and that the affidavit made by him of claim for reimbursement was incorrect and false. The jury were appropriately instructed on the issues involved and no exceptions were taken to the charge. The exceptions relate to the denial of the motion for directed verdicts and to the admission of evidence.

“Whoever . . . with intent to defraud, obtains by a false pretence, . . . the money or personal chattel of another, . . . shall be guilty of larceny.” G. L. c. 266, § 30. “A false pretence, within the statute, is a representation of a material fact, calculated to deceive, which is not true.” Commonwealth v. Stevenson, 127 Mass. 446, 448. There was evidence from which the jury could find that the defendants intended by the use of false pretences to induce the Commonwealth to part with its money when it otherwise would not have done so. Commonwealth v. Coe, 115 Mass. 481, 502. It is provided in G. L. c. 129, § 32, that tuberculin as a diagnostic agent for the detection of tuberculosis in domestic animals shall be used only upon cattle brought into the Commonwealth and upon cattle in certain designated quarantine stations, but that it may be used as such diagnostic agent on any animal in any other part of the Commonwealth with the written consent of the owner or person in possession thereof. G. L. c. 129, § 33, as amended, and the rules and regulations prescribed thereunder permit certain acts in connection with a tuberculin test to be performed by a representative of the owner, but the word “representative” as there used refers to a person authorized and purporting to act as agent of the owner and not to a person who pretends to be the owner when in fact he has no title to the cattle. The jury could have found that the defendants intended that Young should pretend to be the owner of Jacobson’s cattle. The Commonwealth has no authority under the statute in question to pay money for reimbursement to any one except the owner or to pay such owner unless the cattle are slaughtered under the authority of the rules and regulations, and no money can be paid by the Commonwealth if, in the opinion of the direptor, the owner or his representative has negligently or by wilful act contributed to the spread of bovine tuberculosis. If the name of the owner is kept from the director it is evidently impossible for him to form any opinion as to the conduct of the owner in this matter.

The evidence that Jacobson told the veterinarian that he had a claim on the cattle would not justify a finding that the Commonwealth was thereby notified that he was the owner. He did not so state and the Commonwealth had a right to rely on the statements under oath in the claim for reimbursement.

An apparent purpose of the Legislature in enacting St. 1922, c. 353, § 3, in amendment of G. L. c. 129, § 33, and of the director in promulgating rules thereunder, was to lend the aid of the Commonwealth to an owner of cattle who wished to eradicate tuberculosis if found in his herd. The provisions of G. L. c. 129, §§ 11,12, as amended by St. 1922, c. 353, §§ 1, 2, relating to compensation for animals killed by order of the director without previous appraisal do not give an absolute right to compensation for cattle affected with tuberculosis and they have no application to the rights of an owner where' cattle are killed following a tuberculin test made by agreement with the owner under authority of G. L. c. 129, § 33, as amended, and the rules of the director. The owner acting personally or by his representative must be the moving party under these rules by requesting a tuberculin test and agreeing to comply with the rules, and before the test is applied he is to give complete information as to any previous tuberculin test of his herd. The rules require the owner to make the affidavit as to the amount of money received from the sale or disposal of the carcasses of slaughtered animals, and permit an owner to add to his tested herd only animals which have passed a tuberculin test approved by the director of animal industry. The amount to be paid the owner for a grade animal is one third of the difference between the appraised value and the proceeds of sale, called salvage, if that third is $25 or less; but the amount so paid is not to exceed $25 in any event. The statements in the affidavit of Young that he had received certain sums as salvage, and as to the ownership of the cattle, could be found to be material representations in the proceedings which resulted in obtaining money from the Commonwealth.

Jacobson’s claim for reimbursement, if presented, would have to be passed upon in the regular way by the designated State officials. It is enough, so far as this prosecution against him is concerned, if it appears that he was responsible for false representations, intending thereby to have his co-defendant obtain from the Commonwealth money to which he was not entitled, and that the Commonwealth relying upon them parted with its property to Young to its harm. The fraudulent intent could be inferred from the conversation between Jacobson and Young which in itself would justify the jury in inferring that Jacobson would not have been entitled to any reimbursement from the Commonwealth if he had asked for a test in his own name. Enough has already been stated to show that upon a request for a tuberculin test an owner of cattle reacting to the test is not under all circumstances entitled to reimbursement and that there are some special provisions which might prevent such reimbursement to a person whose herd previously had been tested. ■

By having Young appear as owner, Jacobson was in a position where he could avoid giving the complete information as to any previous tuberculin test of his herd or individual members thereof, required as a condition of having the test applied and he could make the false statement that he purchased the cows from Young and thus arbitrarily establish their salvage value. If the true owner’s name appeared, this statement would be required from the person to whom he sold the animals for slaughter. With the false statement of the sale by Young in the case, the Comm on - wealth was not required to go further and attempt to show whether or not the cattle were killed and, if slaughtered, what Jacobson actually received for their carcasses. The defendant had not laid the foundation for any payment either to himself or to Young.

The evidence that Jacobson and Young were acting with a common purpose was sufficient to justify the application of the principle that the acts and statements of each in the execution of that purpose were the acts and statements of both. Commonwealth v. Harley, 7 Met. 462. Commonwealth v. Mulrey, 170 Mass. 103, 110. Commonwealth v. Farmer, 218 Mass. 507, 513. Commonwealth v. Morrison, 252 Mass. 116, 123.

The defendant Jacobson contends that the false statements as to ownership should be held not to be fraudulent but should be treated as true because of the doctrine of estoppel which would prevent him from denying, as to those who have acted upon them, that the title to the cattle was in Young, and relies in support of that position upon State v. Asher, 50 Ark. 427. Whether that case would be followed in this Commonwealth upon similar facts or whether such a defence is foreign to the purposes and theories of a criminal prosecution we need not decide, because the facts in the case at bar make the principle of the Arkansas case inapplicable. In that case it was held that by reason of the doctrine of estoppel the vendor suffered no harm. Here we are dealing with a statute which authorizes the payment of money by the Commonwealth to the owner of cattle, not upon the title passing to it as buyer but upon the cattle reacting to a test applied under certain prescribed conditions and rules. So far as the Commonwealth is concerned, the person who is not the owner cannot become entitled to reimbursement as owner by pretending to be such, even if he makes this pretence by arrangement with the true owner, and for the reasons heretofore stated the jury could have found that the Commonwealth suffered harm by making the payment to Young.

Upon the record in this case there was nothing corresponding to the liquidated debt which existed in Commonwealth v. McDuffy, 126 Mass. 467. See Commonwealth v. Burton, 183 Mass. 461; Commonwealth v. Peakes, 231 Mass. 449, 457.

The fact, that one object of the Commonwealth in paying money under this statute is to assist an owner in ridding his herd of tuberculosis, would not prevent the jury from finding that it was induced to part with its money by the false pretences. "It is enough ... if the fraudulent representation was a decisive although not the sole influence operating upon the mind of the person to induce the giving up of money. Other statements or considerations not amounting to false pretenses may co-operate to that result without impairing the force of the criminal act.” Commonwealth v. Farmer, supra. Commonwealth v. Drew, 19 Pick. 179, 183. Commonwealth v. Lee, 149 Mass. 179. The transaction was completed so far as the Commonwealth was concerned when its check was given to Young. The fact that he indorsed it to Jacobson is unimportant except for its bearing on their common purpose. Commonwealth v. Harley, supra. Commonwealth v. Langley, 169 Mass. 89, 95.

A party defrauded may testify that the representations induced him to part with his property and that he would not have parted with it but for them. Commonwealth v. Drew, 153 Mass. 588. Commonwealth v. O’Brien, 172 Mass. 248. When false pretences are made to obtain property of a corporation or of the Commonwealth, the persons who are authorized to act for the corporation or the Commonwealth in the particular matter may give similar testimony as to the effect of the representations on their official action in the matter.

There was no error in admitting the testimony of the witnesses Reed, Pierce and Houghton tending to show their reliance on the false statements or what they would have done if they had known that certain of the statements were false. Each of them represented the Commonwealth in some capacity in connection with the tests or with taking the necessary steps to get money from the treasury of the Commonwealth into the hands of Young.

The evidence was sufficient to justify the jury in finding that the Commonwealth delivered its, check to Young relying upon the truthfulness of the false statements made by Young and Jacobson. To prove this fact, it was not necessary to call each person representing the Commonwealth who acted upon the defendants’ claim. The defendants set the machinery in motion, the natural result of which could have been found to be a fraud upon the Commonwealth, and it was for the jury to say whether the inference of guilt was established beyond a reasonable doubt. Commonwealth v. Mulrey, 170 Mass. 103, 108. See Commonwealth v. O’Brien, supra, page 256.

There is no occasion for considering evidence admitted or arguments made to which no exception was taken. It was in evidence without objection that Young had pleaded guilty to the conspiracy indictment. In cross-examination he said that in signing the papers he did not think that he was doing anything wrong, that he did not intend to defraud the Commonwealth of any money or to conspire with Jacobson to defraud the Commonwealth. He then testified without objection that he was represented by counsel when he pleaded guilty. When recalled, in redirect examination, subject to the defendant’s exception, he gave the names of the attorneys who represented him. The bill of exceptions states that this testimony was commented on by the district attorney in argument. It also states that the attorneys named were well and favorably known in Worcester County, but it does not appear that there was any evidence to that effect before the jury. The fact that Young pleaded guilty and was represented by counsel at the time having been introduced in evidence without objection, we are unable to see how the evidence naming counsel, even if improperly admitted, could be considered reversible error, whatever the standing of the counsel in the county may have been. This evidence added nothing material to the evidence already in the case and could not be held to have prejudiced the defendant’s rights. We must assume that the jury followed the instructions given, which were, in substance, that they could not consider the fact that Young pleaded guilty to conspiracy in any way as evidence against Jacobson. “You give the fact that Mr. Young pleaded guilty no consideration whatsoever against the defendant Jacobson.” Commonwealth v. Richmond, 207 Mass. 240, 251. This instruction protected Jacobson from any unfavorable inference from that plea as made under all of the circumstances disclosed by the evidence including that which related to Young’s counsel.

All exceptions argued have been considered and in both cases the entry must be

Exceptions overruled.