Commonwealth v. Bannon

Decision Date06 January 1926
Citation254 Mass. 320,150 N.E. 7
PartiesCOMMONWEALTH v. BANNON.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions and appeal from Superior Court, Bristol County; Hugo A. Dubuque, Judge.

Edward T. Bannon was convicted of larceny by false pretense and by embezzlement, and he excepts and appeals. Exceptions overruled.

John H. Backus and Jos. A. Scolponeti, both of Boston, for appellant.

Stanley P. Hall, Dist. Atty., of Taunton, and Edw. T. Murphy, Asst. Dist. Atty., of Fall River, for the Commonwealth.

BRALEY, J.

[1] While the indictment was in three counts, the defendant was tried and convicted only on the first and third counts which respectively charged larceny by a false pretense and by embezzlement. The defendant moved for, and specifications were filed under each count which as to count one stated, that the allegation of larceny rested on the procurement of $3,500 from George B. Schumm by the false statement that the mortgage given as security therefor was a first mortgage. The defendant's evidence tended to show his innocence, but the jury on the testimony for the commonwealth could find on the first count that the defendant obtained from Schumm a loan of $3,500 secured by a mortgage of real property which he represented to Schumm was a first mortgage, when in fact the property was subject of record to three prior mortgages. The fact that the mortgage ran to George B. Schumm, trustee,’ and not to George B. Schumm individually, as stated in the specifications, is not a fatal variance. The essential elements of the crime were stated, and the defendant was not prejudiced. G. L. c. 277, § 35; Com. v. Soper, 133 Mass. 393.

[2] It could be found further that the lending of the money and the representations were one transaction and not distinct and separate acts. The defendant contends that because G. L. c. 266, § 80, provides that whoever conveys land knowing that an encumbrance exists thereon, without informing the grantee before the consideration is paid of the existence and nature of such incumbrance so far as he has knowledge thereof, shall be subject to punishment by imprisonment or fine, he cannot be convicted of larceny where he obtains money by a false representation that the land conveyed is free from incumbrances. But under G. L. c. 266, § 80, the statute punishes the perpetrator for failing to disclose if known to him the fact that a prior incumbrance on the property transferred exists, while under G. L. c. 266, § 30, if money is obtained by a false pretense that the property is unincumbered, the offense, if intent to defraud is shown, is larceny. It is plain that the statutory offense of nondisclosure is distinct from the offense of obtaining money with intent to defraud the grantee by a false pretense or representation that the mortgage given as security is a first mortgage. Commonwealth v. Harriman, 127 Mass. 287, 289. The positive statement that the mortgage was a first mortgage, made falsely and designedly by the defendant, whereby Schumm was induced to part with his money, was proof of an intent ‘to injure or defraud.’ Commonwealth v. Coe, 115 Mass. 481;Commonwealth v. Lee, 149 Mass. 179, 184, 21 N. E. 299;Commonwealth v. Carver, 224 Mass. 42, 112 N. E. 481.

[3] The mortgage to Schumm was dated January 13, 1924, and the mortgage to one Gandreau, a third mortgage, dated December 15, 1919, was recorded December 15, 1919. But Gandreau, a witness for the commonwealth, having testified on cross-examination that after the mortgage was recorded a misdescription...

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11 cases
  • Commonwealth v. Snow
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 7, 1930
    ...prosecution for the same offense. See Bennett v. United States, 227 U. S. 333, 338, 33 S. Ct. 288, 57 L. Ed. 531;Commonwealth v. Bannon, 254 Mass. 320, 150 N. E. 7;Commonwealth v. Baxter (Mass.) 166 N. E. 742;Bartkus v. United States (C. C. A.) 21 F.(2d) 425, 427;King v. United States (C. C......
  • Lawson v. Affirmative Equities Co., L.P.
    • United States
    • U.S. District Court — District of Massachusetts
    • October 27, 2004
    ...Credit by pledging the Hotel as collateral) could be found by a trier of fact to constitute a willful deceit. See Commonwealth v. Bannon, 254 Mass. 320, 323, 150 N.E. 7 (1926).23 Promissory and Equitable Counts VI and Count VII of the Second Amended Complaint plead promissory and equitable ......
  • Commonwealth v. Parrotta
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 1, 1944
    ...266, 267;Commonwealth v. Soper, 133 Mass. 393;Commonwealth v. Graustein & Co., 209 Mass. 38, 41, 42, 95 N.E. 97;Commonwealth v. Bannon, 254 Mass. 320, 322, 323, 150 N.E. 7. The amendment made no change in any of the essential ingredients in the description of the offence as originally charg......
  • Commonwealth v. Belenski
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 5, 1931
    ...were against the law and the evidence. These motions were addressed to the sound discretion of the presiding judge. Commonwealth v. Bannon, 254 Mass. 320, 325, 150 N. E. 7. The questions raised could have been raised at the trial. Commonwealth v. Dascalakis, 246 Mass. 12, 24, 32, 33, 140 N.......
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