Commonwealth v. Coe

• Decision Date: 05 September 1874
• Citation: 115 Mass. 481
• Parties: Commonwealth v. James A. Coe
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

115 Mass. 481

Commonwealth v. James A. Coe

Supreme Court of Massachusetts

September 5, 1874

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Suffolk. Indictment for cheating by false pretences. Trial in the Superior Court before Aldrich, J., who allowed a bill of exceptions in substance as follows:

The indictment contained two counts. On the first, which alleged an intent to cheat and defraud one Frank Shaw, the jury found that the defendant was not guilty. The second count, on which the defendant was found guilty, alleged that the defendant at Boston, on January 4, 1873, "being a person of an evil disposition and devising and intending by unlawful ways and means to obtain and get into his hands and possession the goods, merchandise. chattels and effects of the honest and good citizens of this Commonwealth, and with intent to cheat and defraud one John Ferris, and with the view and intent to effect the loan hereinafter mentioned, did then and there unlawfully, knowingly and designedly falsely pretend and represent to said John Ferris, that a certain paper writing and certificate which he said Coe then and there had and produced to said Ferris, and which was of tenor following, to wit:

"No. 59. Eastern Railroad Company. 100 shares.

"Be it known that John Ferris of Boston is a proprietor of one hundred shares in the capital stock of the Eastern Railroad Company, subject to all assessments thereon, and to the provisions of the charter and the by-laws of the corporation, the same being transferable by an assignment thereof in the books of the corporation, or by a conveyance in writing recorded in said books; and when a transfer shall be made or recorded in the books of the corporation and this certificate surrendered, a new certificate or certificates will be issued.

"Dated at Boston this third day of January, a. d. 1873.

"Thornton K. Lothrop, President.

"John B. Parker, Treasurer."

[Seal.]

was then and there a good, valid and genuine certificate of ownership of stock in said company, lawfully and duly issued and signed by said Lothrop and Parker, and was then and there of the value of ten thousand dollars. And the said Ferris then and there believing the said false pretences and representations, so made as aforesaid by the said Coe; and being deceived thereby was induced, by reason of the false pretences and representations so made as aforesaid, to loan and deliver, and did then and there loan and deliver to the said Coe, upon the security and pledge of the said certificate, then and there by said Coe delivered to said Ferris as such security for said loan, the sum of seven thousand dollars, one check and order for the payment of money of the value of seven thousand dollars, one piece of paper of the value of seven thousand dollars, of the proper moneys, goods, merchandise, chattels and effects of said Ferris. And the said Coe did then and there receive and obtain the said moneys, goods, merchandise, chattels and effects of the said Ferris as such loan, by means of the false pretences and representations aforesaid, and with intent to cheat and defraud the said Ferris of the same moneys, goods and merchandise, chattels and effects. Whereas in truth and in fact, said writing and certificate was not then and there a good, valid and genuine writing and certificate of ownership of stock in said company, duly and lawfully issued and signed by said Lothrop and Parker, but was then and there a false, forged and counterfeit writing and certificate, and was not then and there of the value of ten thousand dollars, but was then and there of no value, all of which he said Coe then and there well knew. And so the jurors aforesaid upon their oaths aforesaid do say that the said Coe, by means of the false pretences aforesaid, on the said fourth day of January in the year of our Lord eighteen hundred and seventy-three, at Boston aforesaid, unlawfully, knowingly and designedly did receive and obtain from said Ferris the said moneys, goods, merchandise, chattels and effects, of the proper moneys, goods, merchandise, chattels and effects of the said Ferris, with intent to defraud him of the same, against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided."

Before the jury were sworn the defendant filed a motion to quash the indictment, as follows:

"And, as to the second count, the defendant says there is therein no offence or crime formally and distinctly set forth, in this:

"1. That it does not appear thereof that the said Coe had or pretended, or claimed to have any, interest or property in said certificate set forth therein, or the property therein described, or could make any transfer thereof or give any title thereto, but the contrary thereof appears in said indictment.

"2. Because, by said indictment, said certificate is described as the property of and certificate of said Ferris, and therefore said Ferris could not be deceived or defrauded by the delivery thereof to him.

"3. Because said check or paper writing alleged to have been delivered by said Ferris to said Coe is not set forth as described.

"4. Because the indictment does not set forth what is the tenor of the certificate alleged to have been delivered by the defendant."

The defendant, in addition to the above motion to quash, before the jury were sworn to try the issues arising upon said indictment, moved that said indictment be quashed, "because it is not sufficient, and does not set out an offence or crime committed by him, in this:

"1. That it does not appear by said indictment that the defendant had any right, title or interest in, or pretended or claimed to have any right, title or interest in, or any property whatever in the certificate of stock described in said indictment; nor that there was any way whereby the defendant could enable John Ferris, mentioned in said indictment, to obtain any property in or advantage from said certificate, other than he already at that time possessed; and thus he, said Ferris, could not be deceived thereby, nor have delivered anything of value upon the security thereof.

"2. Because it appears by said indictment that said certificate was the property of said John Ferris, and that the said Ferris could not be defrauded by the delivery thereof to himself, nor by any representations regarding it.

"3. Because it is not set forth in said indictment how, or in what manner, said Ferris could be deceived by the offer of said certificate, or any representations regarding the same.

"4. Because said certificate by its terms, as appears in said indictment, was transferable only by conveyance in writing recorded in the books of the corporation by the said John Ferris, purporting to be the owner thereof, and the surrender of said certificate and the issue of a new certificate, or certificates; and thus it appears that the said Coe had no property in said certificate, and that the said Ferris could receive no benefit therefrom.

"5. Because the check and piece of paper alleged to have been delivered to said Coe by said Ferris are neither of them set forth nor described.

"6. Because in said indictment it is set forth that the said Coe obtained from said Ferris a loan only of the property therein mentioned, it not being alleged that the said Ferris was deprived of his property therein, and it is not alleged how he could be, or was, defrauded of his property therein.

"7. Because the allegations of said indictment charge representations made relating to the means and ability of the defendant to repay, at some future day, a loan then obtained; and it is not alleged in said indictment that the representations made by the defendant were made in writing.

"8. Also, because said indictment alleges that the described certificate was of a certain tenor, without setting forth what is its tenor."

The court overruled both motions, and the defendant excepted. At the trial, the attorney for the Commonwealth offered in evidence, as the certificate described in the second count, a certificate, similar to that set forth in this count, with blank transfers indorsed thereon. The defendant contended that said indorsements should have been set out in the indictment, and asked the court to rule that there was a fatal variance between the allegation and the proof offered. The court declined so to rule, and the defendant excepted.

It appeared in evidence that at the time of the delivery to Ferris by the defendant of the last named certificate, the defendant also delivered to said Ferris his, the defendant's, promissory note for the amount of said loan, payable three months from its date. The defendant asked the court to rule that the giving of the note and the note itself should have been set out in the indictment; and not being so set out, that there was in this respect a fatal variance between the allegations and proof. The court declined to make such ruling, and the defendant excepted.

It was proved that the certificate of stock delivered to Ferris was when originally issued, a valid certificate for one share of stock in the Eastern Railroad Company, and that it had been subsequently altered, without the authority of the company, so as to read "one hundred shares" instead of "one share." The defendant contended that the certificate, having been originally duly issued as a certificate for one share, still remained a good and valid certificate for one share, and was of value, notwithstanding the alterations subsequently...