Commonwealth v. McCarty

W. Allen, J. The first reason stated in the motion to quash the indictment is, that it is not sufficiently alleged that the matters inquired of were material to the issue. The St. of 1884, c. 236, §§ 2, 3, provides that an insolvent debtor, after proceedings in insolvency are commenced, may file a proposal for composition with his creditors, and that the court shall order a hearing on such proposal. Section 6, as amended by the St. of 1889, c. 406, § 3, provides that the debtor shall be present at the hearing, and may then be examined touching his estate or his dealings therein. The indictment duly and formally alleges the proceedings in insolvency: the filing of the proposal for composition, the hearing thereon, and that the debtor, the defendant, was present at such hearing, and examined under oath touching his estate and his dealings therewith, and that he made false answers to certain material questions put to him upon such examination. The objection that the indictment does not show any issue to which the inquiries could have been material, cannot be sustained. The indictment alleges that it was material in such examination to ascertain whether on a day named the defendant did get checks cashed in Boston, and did get one Henry to cash checks for him, and did collect money of said Henry; and the [580] perjury is alleged to have been concerning these matters alleged to have been material. The remaining grounds assigned for quashing the indictment are in effect one, that the alleged false statements are not shown to have been material, because no value is alleged of the checks and money, because the word “ checks ” is indefinite and insufficient to describe anything, and because the checks and money are not alleged to have belonged to the defendant. There are two answers to this objection. The first is, that there is a direct averment that the matters were material. The substantive matters may be shown by the indictment to be material, either by direct averment, or by allegations from which their materiality appears. The rule of pleading is satisfied by a direct averment, and with that the question of materiality becomes one of proof of that averment. It is only when there is no averment of materiality that the indictment is insufficient unless it alleges the facts from which the law infers the materiality. Commonwealth v. Byron, 14 Gray, 31, and cases cited. 2 Russ. Crimes, (9th Am. ed.) 639-642. The averment is, in substance, that it was a material question whether the defendant had in his possession, at the time and place mentioned, checks and money. The first answer to the objection is, that the averment is sufficient, without showing how it is material. The other answer is, that, if the indictment did not contain that averment, the materiality of the matter alleged appears from the facts alleged. Upon a hearing on a proposal for composition filed by an insolvent debtor, and on an examination of the debtor at such hearing touching his estate and his dealings therein, the question to the debtor whether, two days before the filing of his petition in insolvency, he had in his possession checks and money, is a material question. A circumstance tending to prove an issue is material to the issue, though by itself wholly insufficient to prove it. Evidence of the possession of property by a defendant is material on the issue of larceny or conversion of it by him. The allegations that an insolvent debtor was under examination touching his estate and his dealings therewith, and in such examination was asked if he had checks cashed, and received money upon them, two days before he commenced the proceedings in insolvency, import that the questions ai’e [581] material, and tlie indictment would have been good had the averment that the inquiry was material been omitted. The defendant excepted to the admission of parol evidence of his testimony on his examination, on the ground that the Pub. Sts. c. 157, § 70, provide that 'examinations under that section shall, when required by the judge, be in writing, signed by the party, and filed in the case. The examination was not in writing, but the argument is, that, if the evidence provided for by the statute is not required, no evidence of the examination is competent. The statute authorizes an examination not in writing, and leaves such examination to be proved under the ordinary rules of evidence. Even if the provision of the Pub. Sts. c. 157, §70, applies to an examination under the St. of 1889, c. 406, § 3, there is no ground for the exception. Exceptions overruled.