Commonwealth v. Jacobson

• Decision Date: 30 June 1927
• Citation: 260 Mass. 311,157 N.E. 583
• Parties: COMMONWEALTH v. JACOBSON et al. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

260 Mass. 311

157 N.E. 583

COMMONWEALTH

v.JACOBSON et al. (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

June 30, 1927.

Exceptions from Superior Criminal Court, Worcester County; W. Thayer, Judge.

Louis S. Jacobson was convicted of conspiracy to steal and of stealing money of the value of more than $100, property of the commonwealth and he excepts. Exceptions overruled.C. B. Rugg, Dist. Atty., of Worcester (H. W. Brown, Asst. Dist. Atty., of Boston, on the brief), for the Commonwealth.

M. M. Johnson, of Boston (G. E. O'Toole, and A. J. Kittredge, both of Clinton, on the brief), for defendant.

SANDERSON, J.

One of these indictments charges the defendants with conspiracy to steal; the other with stealing money of the value of more than $100, the property of the commonwealth. They grow out of transactions connected with tuberculin tests of a herd of cattle made under the provisions of G. L. c. 129, § 33, as amended by St. 1922, c. 353, § 3, and the rules and regulations prescribed by the director of the division of animal industry. The indictment for larceny was nol prossed as to the defendant Young, who pleaded guilty to the indictment for conspiracy and was called as a witness by the commonwealth in the trial of the defendant Jacobson on both indictments.

Jacobson was engaged in the business of selling meats and provisions and buying and selling cattle for slaughter. Young was cashier in a national bank. In the summer of 1923, Jacobson applied for a tuberculin test of his herd of cattle, in conformity with the provisions of G. L. c. 129, § 33, as amended, as a result of which compensation was paid to him by the commonwealth. In 1925, he asked Young to sign an application for a tuberculin test of his (Jacobson's) cattle, giving as the reason for this request that he previously had one test in his own name and also saying something about the necessary length of time that must elapse before he could have another test made in his own name. Pursuant to this request, Young made application for a tuberculin test of forty-nine cattle described as ‘my herd,’ signing his name thereto after the words, ‘Owner's authorized representative.’ This application was given to Jacobson who forwarded it to the proper authorities in the division of animal industries at the statehouse. Subsequently a veterinarian from that department examined the herd then consisting of thirty-seven cattle; at this examination Jacobson was present and Young was not. All these cattle reacted to the test, and a numbered tag was attached to each. They were appraised, and their appraisal value entered on a blank form bearing the words, ‘Owner Robert B. Young.’ This appraisal was signed by the veterinarian and by Young as ‘owner, or authorized representative,’ both certifying that the amounts recorded were fair and just estimates of the market values of the animals, and then forwarded to the Division of Animal Industry.

Thereafter Young was requested to have the blank provided by the director for report of sales of reacting animals filled out and signed by the person to whom he had sold them. This was signed by Jacobson, and set forth, in substance, that Jacobson had purchased from Young the thirty-seven cattle that had reacted, and had actually paid Young or his agent therefor the amount set opposite each cow's number, totaling $800. There had in fact been no such sale or payment. After this report of the proceeds of the appraised value and the sum to be paid Young as reimbursement was computed, the tabulation thus made was sent to Young upon the form to be executed by the owner in making his claim for reimbursement, with a request to sign as owner and to fill out an appended form if anyone else had a claim on the animals. Upon receipt of this document, Young said to Jacobson in substance that he disliked to sign and verify the untrue statements therein contained. Upon Jacobson's assurance that it was all right to execute the paper, that he was merely acting as Jacobson's representative, Young filled out, signed, and swore to the claim, making therein the statements,without any foundantion of fact to support them, that no person other than himself had any claim on the animals, and that the salvage figures were correct. When executed this claim for reimbursement was handed by Young to Jacobson and forwarded to the Division of Animal Industry. Later, Young received a check to his order from the treasurer and receiver general of the commonwealth for $924, the amount stated in the claim. Young indorsed this check and gave it to Jacobson, who deposited it in his bank account. Subsequently Young received a check for approximately the same amount from the federal government as reimbursement from it for condemnation of the same herd as the result of the same tuberculin test. He likewise indorsed that check and gave it to Jacobson.

At the trial there was no contradication of the testimony of Young, who was called as a witness for the commonwealth, to the effect that he never owned the cattle in question or any others, never sold any cattle to Jacobson, and that the affidavit made by him of claim for reimbursement was incorrect and false. The jury were appropriately instructed on the issues involved and no exceptions were taken to the charge. The exceptions relate to the denial of the motion for directed verdicts and to the admission of evidence.

[1][2] ‘Whoever * * * with intent to defraud, obtains by a false pretense, * * * the money or personal chattel of another, * * * shall be guilty of larceny.’ G. L. c. 266, § 30. ‘A false pretense, within the statute, is a representation of a material fact, calculated to deceive, which is not true.’ Commonwealth v. Stevenson, 127 Mass. 446, 448. There was evidence from which the jury could find that the defendants intended by the use of false pretenses to induce the commonwealth to part with its money when it otherwise would not have done so. Commonwealth v. Coe, 115 Mass. 481, 502. It is provided in G. L. c. 129, § 32, that tuberculin as a diagnostic agent for the detection of tuberculosis in domestic animals shall be used only upon cattle brought into the commonwealth and upon cattel in certain designated quarantine stations, but that it may be used as such diagnostic agent on any animal in any other part of the commonwealth with the written consent of the owner or person in possession therof. G. L. c. 129, § 33, as amended, and the rules and regulations prescribed thereunder, permit certain acts in connecton with a tuberculin test to be performed by a representative of the owner, but the word ‘representative’ as there used refers to a person authorized and purporting to act as agent of the owner and not to a person who pretends to be the owner when in fact he has no title to the cattle. The jury could have found that the defendants intended that Young should pretend to be the owner of Jacobson's cattle. The commonwealth has no authority under the statute in question to pay money for reimbursement to any one except the owner or to pay such owner unless the cattle are slaughtered under the authority of the rules and regulations, and no money can be paid by the commonwealth if, in the opinion of the director, the owner or his representative has negligently or by wilful act contributed to the spread of bovine tuberculosis. If the name of the owner is kept from the director it is evidently impossible for him to form any opinion as to the conduct of the owner in this matter.

[3] The evidence that Jacobson told the veterinarian that he had a claim on the cattle would not justify a finding that the commonwealth was thereby notified that he was the owner. He did not so state, and the commonwealth had a right to rely on the statements under oath in the claim for reimbursement.

[4] An apparent purpose of the Legislature in enacting St. 1922, c. 353, § 3, in amendment of G. L. c. 129, § 33, and of the director in promulgating rules thereunder, was to lend the aid of the commonwealth to an owner of cattle who wished to eradicate tuberculosis if found in his herd. The provisions of G. L. c. 129, §§ 11, 12, as amended by St. 1922, c. 353, §§ 1, 2, relating to compensation for animals killed by order of the director without previous appraisal, do not give an absolute right to compensation for cattle affected with tuberculosis and they have no application to the rights of an owner where cattle are killed following a tuberculin test made by agreement with the owner under authority of G. L. c. 129, § 33, as amended, and the rules of the director. The owner acting personally or by his representative must be the moving party under these rules by requesting a...