Commonwealth v. Lee

• Citation: 149 Mass. 179,21 N.E. 299
• Parties: COMMONWEALTH v. LEE.
• Decision Date: 09 May 1889
• Court: United States State Supreme Judicial Court of Massachusetts

149 Mass. 179

21 N.E. 299

COMMONWEALTH v. LEE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 9, 1889

COUNSEL

W.B. Orcutt, for defendant.

A.J Waterman, Atty. Gen., and H.A. Wyman, Asst. Atty. Gen., for the Commonwealth.

OPINION

DEVENS J.

1. The motion to quash the indictment was properly overruled. The allegation that the goods were obtained by the false statement on the part of the defendant that he was the owner of certain property upon which he gave a mortgage to the seller, one James, thereby inducing him to part with his goods, was a clear and sufficient charge of obtaining goods by false pretenses. If, after this false pretense that the defendant was the owner of the property to be mortgaged, the mortgage was given, even if the goods would not have been delivered to the defendant but for this fact the false pretense was the direct, and not the remote, means by which the goods were obtained. If the seller had not believed in this pretense, he would have deemed the mortgage worthless, and would not have parted with his property. Com. v. Coe, 115 Mass. 481. In Com. v. Lincoln, 11 Allen, 233, it was held that one who obtains money by means of false pretenses that he owns certain personal property, which he mortgages to the lender as security for the loan, could properly be convicted of obtaining money by false pretenses. The fact that in the case at bar the goods were to be obtained from time to time, and not all at once, can make no distinction between the cases, as the false pretense was a continuing one, and applicable to each delivery.

2. The ruling requested, that the evidence did not support the charge of false pretenses, as laid in the indictment, should not have been given. In distinct terms, the witness James testified that he parted with the goods on the strength of the statement made by the defendant, and also "on the statements and the mortgage," which, in substance, was saying that he relied on the mortgage because of the statements of defendant which preceded or accompanied it. These statements the jury have found to be false pretenses. If James parted with his property solely on the strength of the security of the note and mortgage,--that is, independently of these statements,-- it was instructed to acquit the defendant.

For similar reasons the fifth instruction requested should not have been given. While the defendant was not to be convicted by reason of the covenants in the mortgage as to the ownership of the...