Commonwealth v. Jackson

• Decision Date: 04 January 1882
• Parties: Commonwealth v. Henry Jackson
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

132 Mass. 16

Commonwealth v. Henry Jackson

Supreme Court of Massachusetts

January 4, 1882

Argued November 21, 1881

Suffolk.

Exceptions sustained.

G. R Swasey, for the defendant.

G Marston, Attorney General, for the Commonwealth.

Devens, J. Morton, Endicott & Allen JJ., absent.

OPINION

Devens, J.

The defendant was indicted under the Gen. Sts. c. 161, § 54, for falsely pretending and asserting to one John A. Parker tat a certain horse was sound and kind, with the knowledge that such assertion was false, and with intent to defraud the said Parker by inducing him to part with his money and other valuable property; and for actually so defrauding him.

A statement, in the negotiations for a sale, that a horse is sound and kind, may be a mere affirmation or expression of opinion, and may thus come under what is sometimes designated as "dealer's talk," and be treated as only the mere language of commendation by which the seller seeks to enhance the price of his goods. It may be also the assertion of a fact material to the negotiation, which the seller may properly make, if justified in so doing by his knowledge of the animal, as the basis on which the sale is to be made. When so made and intended, if it be false, and known to him to be so, the seller is guilty of the offence denounced by the statute, if he thereby induces the buyer to part with his property. The distinction was clearly pointed out to the jury, who were instructed to determine whether the statement made by the defendant was of the one or the other class. The instruction requested by the defendant, that the representation that the horse was "sound and kind" was not within the statute, would have required the court to hold that no statement as to the soundness or kindness of a horse, when falsely made and with full knowledge of its falsity, could be legally a false pretence. The health and the temper of an animal are as much matters of fact as its size or its color. They are not so readily ascertained, as they can only be known by more acquaintance with it than inspection affords. They are therefore subjects upon which the buyer must trust largely to the seller. Assertions of fact in relation to them are often most effective in concluding a sale, and when made falsely, and with knowledge that they are so, they are false pretences. State v. Mills, 17 Me. 211. State v. Stanley, 64 Me. 157. Regina v. Kenrick, 5 Q. B. 49.

The next inquiry seems to present more serious difficulty. At the trial, the sale to John A. Parker, which was the subject of the indictment, having been made on May 10, 1880, the government was permitted to offer in evidence the circumstances and details of three other sales made respectively to George J. Hoyt on April 26, 1880, to Charles H. Parker on April 6, 1880, and to one Shepard Bowles on March 29, 1880. In all three instances the evidence tended to show that the parties had been induced to enter into negotiations with the defendant by means of advertisements in a Boston newspaper of the different horses which afterwards became the subject of the sales. The representations and assertions made by the defendant, both by these advertisements and orally, as to these horses, were also put in evidence, and the parties to such sales were permitted to testify that the pretences made by the defendant at each of these sales, as to both soundness and kindness of the horses and in other respects which were the subjects of them, were false. Evidence of these transactions was admitted, against the objection of the defendant, and "solely for the purpose of showing the intent with which the defendant made the sale of the horse to Parker, as charged in the indictment." In the instructions to the jury the evidence was limited to this purpose.

It is not in general competent to show a distinct crime committed by the defendant for the purpose of proving that he is guilty of the crime charged. Jordan v. Osgood, 109 Mass. 457. But as in all crimes, except a few statutory offences, a criminal intent is necessary to be proved, evidence which legitimately bears upon this may be put in, even if it be derived from circumstances which also show the commission of another offence.

The admission of evidence, in a trial for uttering counterfeit bills or base coin, of the utterance of similar bills or coin to other persons about the same time, is well established in England and America, and fully recognized in the courts of this State; Commonwealth v. Stone, 4 Met. 43; Commonwealth v. Bigelow, 8 Met. 235; although it is said by Chief Justice Shaw in Commonwealth v. Stone, ubi supra, to be an exception to the general rules of evidence. So far as the admission of such testimony "may be deemed a departure from the technical rules of evidence," it is said by Mr. Justice Hubbard, in Commonwealth v. Bigelow, ubi supra, "it is a departure justified by the peculiar nature of the crime of passing counterfeit money." The criminal intent may frequently be inferred from the act done, but it is a matter of common experience that a base coin or counterfeit bill is often passed innocently. It is important, therefore, to show a guilty knowledge of their character on the part of the person uttering them, in order to lay the foundation of a just inference of crime against him. His knowledge of the thing uttered is shown by his familiarity with it, as shown by his use of it or similar instruments on former occasions. It is the knowledge which it may be inferred he must have derived from other transactions, and not the intent that the defendant had in other transactions, that renders the evidence admissible, as affording just ground for inference against him as to intent in the matter under examination.

For the same purpose of showing guilty knowledge in a class of cognate cases, where false plate or jewelry has been sold, evidence of other sales of similar ware is admissible. Regina v. Francis, L. R. 2 C. C. 128. Regina v. Roebuck, Dearsly & Bell, 24.

Another exception to the general rule that independent crimes cannot be proved, is found in that class of cases where acts are shown to have been done as part of the same plan or scheme of fraud. Jordan v. Osgood, ubi supra. Where an act is shown to have been done by a party entrusted with money, and the inquiry is whether it was an act of embezzlement, other acts in the conduct of the same business are admissible as showing his criminal intent. Rex v. Ellis, 6 B. & C. 145. Commonwealth v. Tuckerman, 10 Gray 173. Commonwealth v. Shepard, 1 Allen 575. Regina v. Richardson, 2 F. & F. 343.

So where there is evidence of a conspiracy between the defendant and a deputy collector to defraud the revenue, by entering goods at an undervaluation, evidence of other transactions in the conduct of the criminal enterprise is admissible. Bottomley v. United States, 1 Story 135. Where a conspiracy to defraud is alleged, other fraudulent purchases than those set out in the indictment, made about the same time...