Commonwealth v. Farmer

• Decision Date: 10 September 1914
• Parties: COMMONWEALTH v. FARMER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 507

106 N.E. 150

COMMONWEALTH v. FARMER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 10, 1914

COUNSEL

Daniel

V McIsaac, of Boston, Asst. Dist.

Atty for the Commonwealth.

Lewis Marks and Chas. S. Hill, both of Boston (Benj. C. Bachrach of Chicago, Ill., of counsel), for defendants.

OPINION

RUGG, C.J.

These are indictments against the several defendants for larceny and conspiracy to commit larceny. The defendants Powers and Rosenfield were found guilty upon one count charging larceny of $3,000 from Mary L. Rogers. The same defendants were found guilty on an indictment charging a conspiracy to commit larceny from Mrs. Rogers. The defendants Farmer and Rosenfield were found guilty upon one count charging larceny of $19,000 from Mrs. Rogers. The defendant Rosenfield was found guilty upon six other counts charging larceny of large sums of money from Mrs. Powers.

1. The defendants seasonably filed motions to quash on the ground that the form of the indictments in each count violated their rights under the Constitutions of the commonwealth and of the United States. The indictments in all counts followed the short forms set forth in the criminal pleading act. R. L. c. 218. The constitutionality of the statute in this respect has been sustained in several decisions. It now is unnecessary to do more than summarize the conclusions reached. The word 'steal' used in the indictment for larceny has become a term of art and includes the criminal taking of personal property either by larceny, embezzlement or false pretenses. The Constitution of Massachusetts (article 12 of the Bill of Rights) requires only such particularity of allegation as may be of service to a person charged with crime in enabling him to understand the charge and prepare his defense. The provisions of R. L. c. 218, § 39, require a bill of particulars setting out adequate details where the indictment alone does not sufficiently inform the defendants, and this as matter of right. The motion to quash was overruled rightly. Com. v. Kelley, 184 Mass. 320, 68 N.E. 346; Com. v. Sinclair, 195 Mass. 100, 80 N.E. 799, 11 Ann. Cas. 217; Com. v. Bailey, 199 Mass. 583, 85 N.E. 857; Com. v. King, 202 Mass. 379, 88 N.E. 454.

2. The defendants have not pointed out the provision of the federal Constitution under which they contend that their rights have been infringed. It has been decided repeatedly that articles 5 and 6 of the amendments do not apply to powers excercised by the states. Edwards v. Elliott, 21 Wall. 532, 22 L.Ed. 487. The Justices v. Murray, 9 Wall. 274, 19 L.Ed. 658. It seems too plain for argument that this statute violates no rights secured by the fourteenth amendment or any other provision of the Constitution of the United States.

3. The material representations relied upon by the commonwealth as having been made by one or more of the defendants, and as having induced Mrs. Rogers to give to the defendants or some of them very large sums of money aggregating more than $80,000, related to the character of certain sets of the works of Shakespeare and of other authors and to the price which customers therefor already had agreed to pay for them. There was evidence tending to show that the defendant Powers, giving the false name of Clark, called upon Mrs. Rogers and referred to a set of Shakespeare, which afterwards he brought to her, saying that:

'It was a very rare set and if she would take them and keep them during the summer he would sell them for her in October. * * * 'I can get $75,000 for that set of Shakespeare.' * * * He said there were 10 or 12 sets of Shakespeare that went together; that there was one set they were unable to get; and that if they could get the whole sets he could sell them for $75,000.'

Later the defendant Rosenfield called at Mrs. Rogers' house, saying:

'I came from Mr. Clark [the name falsely given by Powers] in regard to the Shakespeare set. There was one series missing and I have succeeded in finding it, but I found it in manuscript form, in loose sheets, and Mr. Powers [Mr. Clark] says that you will pay for binding it and that it would go right in with your set.'

He said further that there were 10 sets of these Shakespeare, and that he----

'could sell the whole set for $75,000. I have a customer who will pay it. * * * I am collecting a set for a millionaire in Chicago who is building a handsome house and wants a handsome library and he has commissioned me to get it for him. * * * I can put those books right into that library and you can get $75,000 for them.'

Still later when he came to get more money Rosenfield said----

'he had sold the books to the Chicago man; that she asked him the name of the Chicago man, and he said he couldn't tell his name, as he was doing business through the man's agent, by the name of Gilman, but he said he had sold all the books to that man for $250,000.'

Other representations of the same general nature were made. The judge ruled that representations relating to the future and those as to value of the sets of books did not constitute false pretenses. But he left the cases to the jury with instructions in substance that the defendants might be found guilty of making fraudulent representations as to existing facts.

The defendants contend that there is no evidence that the representations as to a purchaser and his agreement to buy the books were false to the knowledge of the defendants and made by them with intent to defraud, and hence that no crime was proved. There was evidence that the total value of the books sold to Mrs. Rogers was less than $5,000. No question can be raised that these representations were not material or were not calculated to deceive, or that they did not induce Mrs. Rogers to part with her money. There was no explicit testimony to the direct effect that there was no such customer and that no such agreement was made. In the nature of things it would be difficult to prove the negative of such representations by positive evidence. These representations showed on their face inherent indications of improbability. When brought to the test of common sence they appear fantastical and visionary. They challenge the credulity of ordinary people and hardly could impose upon persons of experience and poise. All the circumstances point to the perpetration of a gross fraud in securing such extraordinary sums of money by entire strangers from a woman who was utterly ignorant of the subject-matter and who acted without the slightest advice from any one aside from the defendants.

There were other incidents which indicated a scheme of imposters. The defendants gave false names and false addresses, so that no trace might be found of them. Rosenfield made a statement to an officer of the bank on which Mrs. Rogers gave him a check or draft as to the proposed application of the money wholly inconsistent with the representations made to Mrs. Rogers. These circumstances should be considered together and not separately in order to determine the falsity of the representations. Treating them collectively there was enough to warrant the jury as rational men in concluding that these representations were fraudulently false and that there was no such customer and no such agreement. Com. v. Howe, 132 Mass. 250; Jules v. State, 85 Md. 305, 36 A. 1027. While some representations were promissory only, others were positive statements of existing facts of a nature calculated to influence the conduct of such a person as Mrs. Rogers. There was no error in submitting this matter to the jury.

4. Evidence was admitted against the exception of the defendant Farmer tending to show that within about two years before the beginning of his relations with Mrs. Rogers, Farmer had made to two other persons false representations of a kindred nature touching the sale of extremely valuable publications to persons of great wealth. This testimony was limited strictly to the issue of Farmer's intent in his personal transactions with Mrs. Rogers. The principle of law governing the introduction of evidence of this kind has been discussed with fullness and accuracy in Com. v. Jeffries, 7 Allen, 548, 83 Am. Dec. 712, and in Com....