Commonwealth v. Burton

• Decision Date: 05 June 1903
• Citation: 183 Mass. 461,67 N.E. 419
• Parties: COMMONWEALTH v. BURTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 461

67 N.E. 419

COMMONWEALTH v. BURTON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 5, 1903

COUNSEL

J. D. McLaughlin, Asst. Dist. Atty., for the Commonwealth.

Geo. R Swasey, Michael J. Dwyer, H. L. Baker, and Geo. A. Gray, for defendant.

OPINION

LORING J.

This is an indictment for larceny, which, by our criminal law practice act, includes the common-law offense of obtaining money by false pretenses. Rev. Laws, c. 218, § 40. At the trial the government undertook to prove the indictment by showing that the prisoner had obtained $2,500 from the New York Central & Hudson River Railroad by false pretenses. On the evidence introduced at the trial the jury were warranted in finding these to be the facts of the case: The prisoner was a passenger on a train leaving Chicago for Boston at 2 p m. on Saturday, April 20th. When the train was just east of Buffalo, it collided with a wild engine. This occurred a few minutes after 7 o'clock on the morning of Sunday, April 21st. The prisoner was in his berth in one of the sleeping cars at the time, and met with a substantial injury. He arrived at Boston on Monday, April 22d, at about 6 in the morning, and between 1 and 2 o'clock that afternoon he called on a physician. On the next day--April 23d--he sent the following telegram, purporting to be from this physician to a claim agent of the railroad who had boarded the train at Syracuse and had taken the prisoner's name as one of those in the collision: 'Judge Burton seriously injured. You had better see him. Hotel Touraine.' On the next day another claim agent, Wilson by name, called on the prisoner at the hotel, and was then told by him that he had received the following injuries in the collision: A bruise over the left ear, some inches long, then badly swollen with a boggy swelling, a black eye, and a cut over the forehead; that his eyesight had been seriously impaired; that he had received a serious nervous shock; and, further, that by reason of these injuries he was incapacitated for business, and had to give up his work, and go South for a rest of two or three months; and, lastly, that he was in receipt of a salary of $15,000 a year. These representations were, in substance, repeated to the chief claim agent of the railroad, one Dwyer, on the morning of the 26th, and on the afternoon of that day the railroad, through Dwyer, paid the prisoner $2,500 in settlement of his claim, relying on these representations. The railroad admitted its liability from the outset, and the only question between the prisoner and the company was as to the amount due. It further appeared that when Wilson first saw the prisoner on April 23d he was in bed, propped up by pillows, with a bandage around his head; that on Wilson's next visit, on the 24th, he was in bed, and his appearance was about the same as on the previous visit; and, lastly, that the prisoner told Dwyer that he was in general good health before the accident. The truth was that the difficulty with the prisoner's eyesight had existed for years, and was probably congenital. The bruise over the ear, the black eye, and the cut over the forehead were received in a drunken altercation in a house of ill fame in Denver on the night of April 17th, three days before he left Chicago for Boston. That, so far from being incapacitated physically by the collision, the prisoner, on the night of Tuesday, April 23d, the day before Wilson saw him for the first time, visited a house of ill fame in Boston. He went there again on the night of Friday, April 26th, the day his claim was settled by the payment of $2,500, and again on the 29th of the same month, and the last of that week he said he spent $300 there. On April 23d there was a directors' meeting at the room of the prisoner in the hotel, lasting from 6 o'clock in the afternoon until about 11 o'clock at night, with an intermission for dinner of an hour and a half at a neighboring restaurant, at which the prisoner was present, and to which he walked, and from which he returned on foot. When Wilson first called on the prisoner, on Wednesday, April 24th, he sent up his card. When the card was brought to the defendant he was sitting up talking with an acquaintance, Light by name, and he asked Light to wait until he got into bed, and he told the hotel boy not to show Wilson up to his room for a few minutes. He then undressed, got into bed, and put the bandage on his head. The plaintiff was not a judge, as he represented he was, and he lied on the stand about having sat as a judge of the District Court of the United States at Butte, Mont. He testified that he had held a judicial office; that he acted three months, in the absence of a judge, at Butte, in the District Court of the United States, and that he did this by consent of the bar. The fact was that he was a referee in a case where the hearings were held in the courtroom of the United States District Court during vacation, and he sat on the bench in hearing that case as referee. Again, in place of being in receipt of $15,000 a year, as he said he was, his salary at the time was $2,080 a year. And, finally, he boasted that he had had good luck in making the railroad pay for his bad luck at the house of ill fame in Denver.

The evidence at the trial was conflicting, and the jury were not bound to find the facts to be as they are stated above. But the jury were warranted in finding these to be the facts, and it is necessary that they should be stated and kept in mind in dealing with the prisoner's contention that there was error in the presiding judge's not giving the eleventh ruling requested by him, and in not setting aside the verdict on the facts found by him on hearing the motion for a new trial.

The fact found on hearing the motion for a new trial was 'that it was not proved beyond a reasonable doubt that the defendant did not receive a substantial injury in the collision at East Buffalo, which would sustain an action against the railroad.' The eleventh ruling was: 'No matter what representations the defendant may have made, if the jury shall find that the amount paid him by the railroad was not more than an adequate compensation for the injuries which he received in the accident, the defendant cannot be convicted.' The prisoner relies, in connection with both questions, on Com. v. McDuffy, 126 Mass. 467. The principle in question in Com. v. McDuffy is that, if the sole purpose of a false pretense is to procure from the person deceived the performance of a duty owed by that person to the prisoner, like the payment of a liquidated debt which is in fact due, there is no intention to defraud. In a case where there is evidence of such a duty due to the prisoner, and evidence that the sole purpose of the prisoner in making the false pretense is to procure the performance of that duty, it becomes necessary to instruct the jury what the result will be if they find that the false pretenses were made to obtain performance of the ascertained duty, and for that purpose alone. But that principle is not a principle of general application, and in a case where there is no evidence of a liquidated amount to be paid, or other ascertained duty due, the question dealt with in Com. v. McDuffy does not arise, and there is no necessity for going further than to tell the jury, as they were told in the case at bar, that the government must prove four things, namely, 'that there was an attempt to defraud, that there was an actual fraud committed, that the false pretenses were used for the purpose of perpetrating that fraud, and that the fraud was accomplished by means of the false pretenses made.' In a case like the case now before us, where a passenger on a railroad train receives substantial injuries in a collision for which the railroad admits its liability, and where, for the purpose of defrauding the company, he makes a false statement of fact (as distinguished from a statement of opinion) that the injuries received by him are more serious than they were, knowing the statement to be false, he is guilty of obtaining money under false pretenses, if the railroad, believing the false statement to be true, and relying on it, pays him a sum in settlement of the injury which he falsely represented that he suffered, but which he did not in fact suffer. Both cases are governed by the same underlying principle, to wit, that (1) the prisoner intended to defraud, and that (2) he was successful; that is to say, that he did commit a fraud. But in applying that principle to a case where there is no ascertained duty due to the defendant, to secure the performance of which alone the false pretense is made--as, for example, where there is an acknowledged liability for personal injuries, the extent of which and the amount of compensation due by reason whereof is unascertained, and can be settled only by agreement or litigation--the question is whether the defendant made false representations of fact as to the gravity of the injury with intent to defraud the railroad company by getting paid for a greater injury than the injury he suffered in fact, and whether he succeeded in getting paid for the greater injury. The issue to be tried is, did he make the false pretense to get paid for a greater injury than the injury he suffered in fact? not did he get more than the jury think he was entitled to for the real injury? For this reason it would have been error to instruct the jury to consider what he would have been entitled to for the injuries which he in fact received, as the prisoner contends that they should have been instructed.

The principle in question in Com. v. McDuffy originated in Rex v. Williams, 7 C. & P. 354. In that case the reason for the principle is stated to be that in such a case there is no intent...