Commonwealth v. Brown

• Decision Date: 11 November 1896
• Citation: 167 Mass. 144,45 N.E. 1
• Parties: COMMONWEALTH v. BROWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 144

45 N.E. 1

COMMONWEALTH v. BROWN.

Supreme Judicial Court of Massachusetts, Suffolk.

November 11, 1896

COUNSEL

M.J. Sughrue, First Asst. Dist. Atty., for the Commonwealth.

R Augustus Duggan, for defendant.

OPINION

HOLMES J.

This is an indictment for obtaining property by false pretenses. The case went to the jury only on certain allegations in two counts,--the second and fifth. The allegations in the second count are of false representations to one Martin that the daily receipts of a certain business then carried on by the defendant at a certain shop "then averaged, and for some time theretofore had averaged, from twenty to twenty-five dollars," and that the defendant "had occupied said store in carrying on said business for the period of five years theretofore." It is alleged that Martin was induced by these pretenses to pay the defendant $350 for one-half interest in the business.

The allegations in the fifth count are of false representations to one Day that the amount of business done by the defendant in a certain shop in Boston "had been more than four hundred dollars per week," and that the defendant "had no other store than said store, except one" on Dudley street, in Boston. It is alleged that Day was induced by these pretenses to give the defendant a check of the amount and of the value of $385 for a half interest in the business.

A great number of points are raised by the exceptions, many of them of a very flimsy character; and we shall confine our discussion to those for which the defendant has offered some reason in argument, or which seem to us important, and shall follow in the main the order adopted by his counsel.

The defendant was sentenced notwithstanding his exceptions, as required by St.1895, c. 469. It is suggested that this statute is unconstitutional. No reason is offered for the suggestion. A statute looking in the same direction long has been in force and unquestioned. Pub.St. c. 153, § 12; Com. v. Clifford, 145 Mass. 97, 98, 13 N.E. 345, 347. See Jacquins v. Com., 9 Cush. 279, 280.

The judge was right in refusing to stay the sentence, or execution of the sentence, and was not called on to state his reasons for doing so.

It is suggested, again without argument, that St.1895, c. 504, under which the defendant was sentenced, is unconstitutional. This statute requires the sentence in certain cases to be for a term of not less than 21/2 years, and not more than a maximum fixed by the court, and not longer than the longest term fixed by law for the punishment of the offense. Such a sentence is in effect a sentence for the maximum fixed by the court, unless a permit to be at liberty is issued as provided by section 2. But the form of the sentence is made to recognize and carry out a policy familiar to our legislation, and acted on heretofore without question. Pub.St. c. 222, § 20; St.1884, c. 255, § 33; Conlon's Case, 148 Mass. 168, 19 N.E. 164. Such a form of sentence does not make the punishment more severe than it otherwise would have been, and we see no reason why the law should not be construed to apply to all sentences, in the cases referred to, passed after the act goes into operation. See Jacquins v. Com., 9 Cush. 279; Upham v. Raymond, 132 Mass. 186; Wood v. Westborough, 140 Mass. 403, 5 N.E. 613; Nott v. Manufacturing Co., 142 Mass. 479, 8 N.E. 406.

With regard to the substance of the offense, it is argued that what the defendant received became partnership funds at once, and therefore continued to belong in part to the defrauded party. Reg. v. Watson, 7 Cox, Cr.Cas. 364. But this was left to the jury, with directions to acquit if they found that to be the fact, as, no doubt, much of the testimony tended to show that it was. It was possible, however, on the evidence, for the jury to find that the money was paid to the defendant as his own for an interest in the firm, and that he merely gave a personal undertaking to put a certain sum out of his own money into the business afterwards, as occasion should require. On that state of facts a conviction was warranted. This consideration disposes of the general objections to testimony on the ground that the defendant was forming a partnership, as well as of the request for a ruling that if the prosecutors afterwards treated the partnership as existing the defendant could not be convicted. The request, no doubt, was based on the suggestion as to the possible effect of rescinding the contract of partnership when the money was a contribution to capital made in Reg. v. Watson, 7 Cox, Cr.Cas. 364, 371, but has no application to the facts which the jury must have found under the very clear instructions of the court. On these facts it does not matter if the payment was made after the partnership was begun. The payment did not become an item in the partnership accounts for that reason, if it was not made as an advance of capital.

We may as well say in this connection that the representations are sufficient to constitute false pretenses. Com. v. Blood, 141 Mass. 571, 6 N.E. 769. See Com. v. Wood, 142 Mass. 459, 461, 8 N.E. 432, 434. It is not necessary for us to consider nicely whether the latitude allowed to sellers of chattels would apply to representations made as the inducements to enter into confidential relations with the speaker.

Next it is said that there was a variance under the fifth count because it is alleged that Day was induced by false representations to part with a check for $385, whereas it appeared by the evidence that $10 of the amount was for that sum in cash handed back by the defendant. But the check was delivered as alleged, and, under the instructions of the court, the representations must have been found to have given a motive without which the transaction of which the payment was part would not have been entered into. ...