Commonwealth v. Devlin
| Citation | 141 Mass. 423,6 N.E. 64 |
| Parties | COMMONWEALTH v. DEVLIN. |
| Decision Date | 01 April 1886 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
This was an indictment in three counts for false pretenses, on the first of which the defendant was acquitted, and on each of the others was found guilty. At the trial in the superior court, before PITMAN, J., Charles H. Kidder, a witness for the government, testified substantially as follows:
I saw Mr. Devlin on the morning of January 8, 1884, and he looked at my sheep in one building, and at Blanchard's sheep in another building, at my request. Devlin made an offer of 51/4 cents per pound for my sheep, and 43/4 cents per pound for Blanchard's lot. I told Devlin I would sell him both lots at the same time, if Blanchard was willing. I then sent for Blanchard, and told him, in a private interview with him within eight or ten feet of Devlin, in a low tone of voice what Devlin's offer was for his (Blanchard's) sheep (Blanchard having nothing to do with my sheep.) Blanchard said if he would not pay any more to let him have them, if he would pay the money for them. Devlin spoke up and said he would pay for them, and had plenty of money to do so. I then sold both lots together. I did all the trading, and Blanchard assented to it. Nothing else was said. In about an hour after that, it might have been longer or shorter, I had both lots of sheep weighed off to the defendant, driving them onto the scales for that purpose in the weighing-house, and they were so recorded to the defendant by the weigher in his book kept for that purpose. At the request of myself or Blanchard, and after they were so weighed, they were driven back to the same yards, although it is just as customary to put them in different yards, just as it is directed or requested by the buyer, and I cannot say whether Devlin assisted in driving the sheep or not. About an hour or so after the weighing off as aforesaid, I, Blanchard, and Devlin went into the cattle-weighing building, on the opposite side of the street, to settle up. In the mean time no bill had been made out for the sheep, or their weights reckoned up. Then we reckoned up the amount, and Devlin took out his check-book to give a check. I told him I did not want a check, but I wanted the money. Devlin said he had the money, but did not carry it around with him; that he had plenty in the bank; said the check was good; therefore I took the check, being induced to do so by these representations; and nothing further was said about the sheep, and nothing further was done about them. Then I went to Boston to the bank, and presented the check, and they threw it back, did not pay it, and it has never been paid since. I then returned to Watertown to find Devlin and looked for the sheep. I found neither; never saw the sheep after this. I next received notice to meet Devlin's creditors on the following Tuesday, and went to the office of his attorneys, where an offer of a settlement at a per cent. was made, which was not accepted.
Another witness testified substantially as did Kidder, that Devlin said he had money, and that Kidder was induced to take the check by reason of representations made by Devlin to Kidder that he had money in the bank, and that it was good. There was other evidence tending to confirm this testimony, and also that there was not sufficient money in the bank to meet the check. The government relied upon the statement and false pretense that Devlin said "he had plenty of money to pay with." There was evidence by several witnesses on behalf of the defendant, tending to show that Kidder had admitted that there were no representations or statements made as to how or when the goods were to be paid for until after the sale and delivery of them, and that the sale and delivery had taken place before any checks were spoken of or given, and any representations with regard to checks were made, which was denied by Kidder. There was also much evidence in behalf of the defendant tending to show that there was a custom or usage, well defined, uniform, universal, and of long continuance, that, the bargain of sale having been made between the seller and buyer, the driving of the sheep onto the scales by the seller, and weighing them off to the buyer, and having them recorded in the weigher's book to the buyer, and then driven off, whether to the same yard from which they were taken or not, constitutes a delivery. Witnesses for the government testified that they knew of no such custom. There was evidence, also, that the defendant had a promissory note for $2,500 in the hands of one Goodnough, one of the directors of the Union Market Bank at Watertown, for discount at this time, and had been so in his hands for some days, and he promised defendant to have it discounted; that defendant spoke to said Goodnough on the day or evening of the seventh of January, 1884, about the discount of said note, and Goodnough gave him encouragement that it would be discounted, though he never spoke to the other directors of the bank about it, and that defendant expected to get this money; and there was further evidence that defendant had been accustomed to borrow a great deal of money of one Donnelly, and Donnelly so testified, from time to time, on a credit of a few days, and then repaying the same; that between the first of January and the eighth, 1884, as testified to by said Donnelly, said Donnelly agreed and promised the defendant to let him have between five and six thousand dollars on the eighth of January, 1884, and on that day defendant called upon said Donnelly between 11 and 12 o'clock for the money to put in the bank, so the defendant informed him, and he refused to let him have it, because he said he had heard his checks had gone to protest. Kidder and Blanchard testified that their checks were given about or a little before 10 o'clock A.M.
Upon the foregoing evidence the court instructed the jury as follows:
(1) That some of the pretenses of an existing fact alleged in the indictment were made by the defendant. (2) That they were made designedly, and with an intent to defraud. (3) That such pretense or pretenses were false. (4) That the property was obtained by means of such false pretenses; that is, that but for such pretense, the owner would not have parted with his property. The defendant claims that he has proved a delivery of the property, according to a custom, before the pretenses were made which are relied on, and that, therefore, the property was not obtained by the defendant through such pretenses. His contention that such custom may be established by a preponderance of...
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