Commonwealth v. McDuffy
| Decision Date | 08 April 1879 |
| Citation | 126 Mass. 467 |
| Parties | Commonwealth v. Thomas J. McDuffy |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Middlesex. Indictment on the Gen. Sts. c. 161, § 54, for obtaining money of Cornelius Sweetser by false pretences.
At the trial in the Superior Court, before Allen J., it appeared that, by virtue of an agreement dated October 3, 1872 Sweetser became the trustee of certain funds for Susan R Howard and her two daughters; that in the fall of 1874 Sweetser, by an arrangement with the cestuis que trust, bought a parcel of land in Lowell with a portion of the trust funds, and took a deed thereof in trust for the persons above named.
It also appeared that the defendant was to build a house upon this land, and was to pay all bills for materials used in said house with money which was to be given to him by Mrs. Howard, from time to time, upon the presentation by him to her of bills for such materials; that the money was to be sent to Mrs. Howard at Lowell by Sweetser, from Saco, Maine, where he resided; that the final settlement for the building of the house was made on September 16, 1875; that at that time a draft, drawn by the cashier of a bank in Saco upon a bank in Boston, for $ 1000, dated November 2, 1875, payable to Mrs. Howard or order, and indorsed by her, was given by her to Sweetser, and by the latter delivered to the defendant, and a certain sum was returned to Mrs. Howard by the defendant, and his bill was thus settled.
Sweetser testified that he had collected certain notes mentioned in the agreement of trust, and had deposited the money in a bank at Saco with his own funds; that he purchased the draft above mentioned with the funds so held by him in said bank, and sent the draft to Mrs. Howard, and charged upon his book $ 1000 as paid out from the trust fund; that his purpose in sending the draft was that it might be used to pay for the house, and that the balance, after the payment of the defendant's bill, was to be paid out upon other bills contracted for the house.
The defendant contended, and asked the judge to rule, that, as a matter of law, the money paid to the defendant, at the time of the settlement, was not the money of Sweetser within the allegation of the indictment; but the judge refused so to rule, and the defendant excepted.
The defendant contended, that he could not be convicted upon the indictment, because, upon the settlement at which it was alleged he made the false representations set forth, he had been allowed nothing for his services in building the house; that he was entitled to receive for his personal services the sum of $ 650; and that, if the sum he received in fact was not more than enough to pay him for the bills actually paid and for his services, then he was not guilty of false pretences, even if he had made untrue statements, because he had defrauded no one.
When the defendant was on the witness stand, he was asked what sums he had actually put into the house upon certain bills; but the judge ruled the inquiry immaterial. The defendant's counsel then suggested that it might be important to the defendant to prove that he only received money enough to pay him what he actually paid out, and what was actually due for labor and materials furnished at the time of the settlement. But the judge ruled that, if the defendant actually made false representations as to what went into the house as materials, he might be guilty, even if he had not received more than was due him.
The defendant asked the judge to rule as follows:
The judge declined so to rule; but ruled that, if the defendant made the false representations for the purpose of obtaining money that he believed to be due to him, and believed that he had a right so to obtain the money, the indictment could not be sustained.
The jury returned a verdict of guilty; and the defendant alleged exceptions.
Exceptions sustained.
T. H. Sweetser & G. A. A. Pevey, for the defendant.
J. F. Brown, Assistant Attorney General, (C. R. Train, Attorney General, with him,) for the Commonwealth.
The only question in this case upon which we feel called to give an opinion is, whether the instructions requested by the defendant, or either of them, should have been given.
It is not easy to understand why, in the view of the law as stated by the presiding justice, evidence of the exact amount of indebtedness to the defendant was...
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