Commonwealth v. Levenson
| Decision Date | 08 January 1925 |
| Citation | 250 Mass. 440,146 N.E. 5 |
| Parties | COMMONWEALTH v. LEVENSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Criminal Court, Middlesex County; Hammond, Judge.
Harry E. Levenson was convicted of larceny in obtaining by false pretenses certain money of value of more than $100, and he excepts. Exceptions overruled.
A. K. Reading, Dist. Atty., R. T. Bushnell, First Asst. Dist. Atty., and Arnold Leonard, Asst. Dist. Atty., all of Boston, for the Commonwealth.
L. A. Mayberry, of Boston, for defendant.
The defendant was tried upon an indictment charging larceny, in that:
‘He did, with intent to defraud, obtain by false pretenses certain divers sums of money of the value of more than $100 of the property of Ernest Linegar.’
[1] There was evidence tending to show that the defendant, then a member of the bar, was retained by one Hughes and one Linegar, to defend them; each being under indictment for receiving stolen goods. Hughes testified that he made an arrangement with the defendant whereby he was to pay the latter $4,000, in return for which the defendant guaranteed with respect to the indictment that ‘nothing will happen; the worst will be probation’; that it was understood that out of this sum the defendant was to pay whatever might be necessary in way of restitution to the persons injured by the thefts and keep the rest as his own for services; that he paid the defendant $3,800, leaving a balance on March 26, 1921, of $200. Linegar testified that he made an arrangement with the defendant whereby he was to pay the latter $500 for defending him, a part of which was to be used for making restitution to those injured by the thefts, and the balance was to be kept by the defendant as his own for his services, and that prior to March 26, 1921, he had paid to the defendant $500. On that date the three were at the courthouse and the defendant, after conference with an assistant to the district attorney and an attorney representing those from whom the goods received by Hughes and Linegar had been stolen, told both Hughes and Linegar that more money was needed, and then told Linegar that $200 more must be paid for restitution and that Linegar made that payment to the defendant. There was further ample evidence to the effect that the statement that $200 more was needed by way of restitution was wholly false and that the defendant paid in settlement by way of restitution at that time only $950, and subsequently only $140 more, and that these sums were all the money that was thus paid. The testimony of the defendant in substance was that Hughes agreed to pay him $4,000 and Linegar $500; that he at the time made full disclosure of his payments by way of restitution; that he made no statement to the effect that $200 additional was needed for restitution, and that he simply asked Linegar for $200, which was paid to him on request, and that that payment completed the amount due to him from both defendants.
The request for the direction of a verdict in favor of the defendant upon this state of the evidence was denied rightly. The false pretense which induced the payment might well have been found on all the evidence to be that a larger sum had been then and there demanded in restitution by the attorney representing the persons from whom the goods had been stolen than had been anticipated or foreseen when the contract as to payments to the defendant had been made. It might have been found to be, not a promissory representation nor a statement as to future expectation, but an assertion of a past or present fact. Commonwealth v. Drew, 19 Pick. 179.Commonwealth v. Althause, 207 Mass. 32, 93 N. E. 202, 31 N. R. A. (N. S.) 999. There is no disposition on the part of the court, either in criminal or civil cases, to extend legal immunity for falsehoods beyond bounds already established. Mabardy v. McHugh, 202 Mass. 148, 149, 88 N. E. 894,23 L. R. A. (N. S.) 487, 132 Am. St. Rep. 484,16 Ann. Cas. 500;Commonwealth v. Quinn, 222 Mass. 504, 513, 111 N. E. 405.
There was sufficient evidence to support a finding that the alleged representation was false....
To continue reading
Request your trial
-
Com. v. Campbell
...Commonwealth v. Kleciak, 350 Mass. 679, 691-692, 216 A.2d 417; Commonwealth v. McCann, 97 Mass. 580, 582; Commonwealth v. Levenson, 250 Mass. 440, 444-445, 146 N.E. 5; Commonwealth v. Dawn, 302 Mass. 255, 262, 19 N.E.2d 315. We have held on many occasions that no error exists in a refusal t......
-
Com. v. Costa
...Commonwealth v. Kleciak, 350 Mass. 679, 691--692, 216 N.E.2d 417; Commonwealth v. McCann, 97 Mass. 580, 582; Commonwealth v. Levenson, 250 Mass. 440, 444--445, 146 N.E. 5; Commonwealth v. Dawn, 302 Mass. 255, 262, 19 N.E.2d There is no necessity here to define voluntary and involuntary mans......
-
Com. v. Kleciak
...to charge on a hypothesis which was not supported by evidence. Commonwealth v. McCann, 97 Mass. 580, 582; Commonwealth v. Levenson, 250 Mass. 440, 444--445, 146 N.E. 5; Commonwealth v. Dawn, 302 Mass. 255, 262, 19 N.E.2d Assignment 22 has to do with a portion of the judge's charge in which ......
-
Com. v. White
...---, --- - --- a, 336 N.E.2d 877 (1975). See also Commonwealth v. Stebbins, 8 Gray 492, 493, 495 (1857); Commonwealth v. Levenson, 250 Mass. 440, 444--445, 146 N.E. 5 (1925); Commonwealth v. Louis Constr. Co., Inc., 343 Mass. 600, 605, 180 N.E.2d 83 (1962). The implications of the cited cas......