Commonwealth v. Stevenson

Morton, J. The first question in this case arises upon the defendant’s motion to quash. The indictment contains two counts, setting forth different offences. As to the first count we are of opinion that the motion to quash was rightly overruled. A false pretence, within the statute, is a representation of a material fact, calculated to deceive, which is not true. Commonwealth v. Drew, 19 Pick. 179. The first count alleges that, in order to induce Mrs. Mayo to sign a lease to Conlin, the defendant falsely represented that said Conlin “ was then and there a liquor-dealer, then doing business as such dealer in Broad Street in said Boston, and that said Conlin was then and there a man worth ten thousand dollars, and that a certain person whom the said Stevenson then and there pointed out and designated to said Mayo was then and there the said T. F. Conlin.” The representation that Conlin was “ a man worth ten thousand dollars ” might have been intended and understood as the expression of an opinion or judgment, and nob as the representation of a fact. Morse v. Shaw, 124 Mass. 59. Homer v. Perkins, 124 Mass. 431. As it is not aided by any other averments in [449] the indictment, it is not, as set out, a false pretence within the statute. So the pointing out a person as Conlin would not seem to amount to the representation of a material fact which was calculated to deceive Mrs. Mayo and induce her to sign a lease to Conlin. But it is no ground for quashing an indictment for obtaining money by false pretences, that it contains some immaterial allegations, or that some of the pretences charged may not be properly charged, if upon its face there is an offence stated with proper precision and formality. Commonwealth v. Parmenter, 121 Mass. 354. A majority of the court are of opinion that the representation that “ Conlin was then and there a liquor-dealer, then doing business as such dealer in Broad Street in said Boston,” is a false pretence within the statute; and, therefore, that the first count is sufficient. It is the representation of a fact calculated to deceive. It imports that Conlin was established in business in Boston, a fact which, if believed, would naturally be influential in inducing Mrs. Mayo to make the lease to him. The objection that the false pretence is not alleged to be in writing cannot prevail. The statute does not require that, in cases like this, the false pretence should be in writing. Gen. Sts. c. 161, § 54. Commonwealth v. Parmenter, ubi supra. As to the second count, we are all of opinion that it is insufficient. The only allegation in that count is that the defendant falsely represented to Mrs. Mayo that he had then and there in his possession a check for the payment of money drawn by him in favor of Mrs. Mayo, from the proceeds of which he intended to pay certain bills due from her to other persons. There is no allegation that he had or pretended to have money in the bank on which the check was drawn, or that he showed or offered the check to her, or that she had any control over it. And the only proper legal construction of all the allegations is that the defendant agreed to take his own money and pay the bills due to the several persons by Mrs. Mayo if she would sign the deed. This was a promise to do something in the future with no representation of any existing material fact. Commonwealth v. Drew, ubi supra. The mere representation that he had drawn a check, without stating that he had money in the bank, was immaterial; and if it could be treated as a representation that he had money in the bank, the indictment is still fatally defective in not nega* [450] tiving that fact. For aught that appears, he may have had the money subject to such a draft. , The only other exception is to the exclusion by the court of the record of the divorce proceedings in which Mrs. Mayo was a party, and in which the jury found that she had committed adultery. Such record did not show the conviction of the witness of any crime which, under the statute, would be admissible to affect her credibility. St. 1870, c. 393, § 3. The result is that the second count should be quashed, and, as to it, the exceptions are sustained; but, as to the first count, the exceptions are overruled.