Commonwealth v. Mulrey
| Decision Date | 07 January 1898 |
| Parties | COMMONWEALTH SAME v. MULREY. SAME v. FINNERAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.D. McLaughlin, Asst. Dist. Atty., for the Commonwealth.
C.W Bartlett, E.R. Anderson, and H.A. Richardson, for defendant Mulrey. H.F. Hurlburt and Julius Nelson, for defendant Finneran.
This is an indictment for obtaining money by false pretenses. Shortly stated, the false pretenses alleged are a series of representations, extending from March 12, 1896, through January 11, 1897, that the defendant Finneran had furnished the city of Boston specified numbers of horses, wagons, and men, and that the city owed him stated sums of money for them. The counts on which the defendants were convicted each of them covered one fiscal month of the city, beginning on the 12th of one month, and going through the 11th of the next. They are seven in number, and the second, tenth eighteenth, and twenty-sixth counts (called the "long counts" at the argument) set out the machinery of the fraud in some detail, while the seventh, fifteenth, and twenty-third (called the "short counts") content themselves with a more general statement to be referred to later.
There was a motion to quash. The long counts were assailed on the ground that it appeared that the city had the means in its hands to protect itself. The defendant Mulrey was teaming clerk in the paving division of the street department of the city. It was his business to make returns, from reports of foremen, of horses, wagons, and drivers employed, and of the amounts due for them. These returns, it is alleged "when duly approved by certain other agents and employés of said city of Boston," were presented to the treasurer of the city, and paid by him. The false pretenses alleged consisted of representing false returns to be true; and it is argued that the city, having control of the agencies through which the returns were made up, and of the sources from which they were made, and having other agents by whom the accounts were to be approved, ought to have found out the discrepancy. We are of opinion that the argument is unsound. This is not the case of parties dealing with each other at arm's length, where each may be expected to make use of the means of information within his power. It is the case of an agent employed and trusted as the very means--the eyes--by which the city was to know the contents of the reports and the amount which it owed. The rather extreme decision of Com. v. Norton, 11 Allen, 266, does not apply. Nor does it matter that the foremen, whose reports it was the defendant's duty to compile, were themselves agents of the city, and that, as against strangers, the city might be held bound to know what all its agents do within the scope of their employment. When a corporation is to be informed by one agent of the state of accounts of another, it is not chargeable, as against the former, with knowledge of the very facts of which it is his duty to inform it. The fiction of identity between principal and agent is used to work out certain liabilities, which it is deemed politic to impose upon the former; but it remains a fiction, and is not applied as if it were a fact, to all the relations between the two, when it leads to absurd results. It would be absurd if the law should pronounce it impossible for an agent to deceive and defraud his principal as to the accounts of another agent, or with regard to the contents of papers technically in the principal's possession.
Next it is objected to the long counts that the city appears to have paid its money on the strength of the approval by other agents, and not on the strength of the defendant's false entries. But this is not true. It is alleged that the defendant Mulrey caused the entries to be duly approved, and that the city was induced to pay by the defendant's false representations that the approved returns were true. The false representations alleged were made by and concerning the entries after they had been approved. Moreover, it does not appear that the approving agents inspected, or had any duty or power to inspect, the reports upon which the return was based, or that they did not rightfully, as well as in fact, rely wholly upon the defendant's returns for figures and amounts. On the contrary, the plain meaning of the indictment is that the approval, so far as amounts were concerned, followed, and was expected and intended by the defendant to follow, as of course, upon the defendant's statement in the return. We are of opinion that this objection is no better than the others.
It was not necessary to allege the names of the approving officers or of the other agent or agents through whom the city was deceived. The misrepresentations are alleged to have been made to the city, and the machinery by which they were made is immaterial. We see no reason for laying down a different rule for corporations from that prevailing in other cases of misrepresentation to a principal through his agents; for instance, to a firm through a clerk. Com. v. Harley, 7 Metc. (Mass.) 462, 467; Com. v. Call, 21 Pick. 515, 523; Roberts v. People, 9 Colo. 458, 466, 13 P. 630. The same consideration applies to the twentieth point of the motion. There was no need to allege any representation to the treasurer. It is true that in the inducement to the count the course of proceeding among the different agencies of the city is shown, but the part that charges the offense deals with the city alone. The city is the party which is alleged to have paid, as well as to have received and to have been deceived by the representations.
We perceive no insufficiency in the statement of the false pretenses in the long counts. It was immaterial whether the foremen's reports were or were not forwarded by the foremen, and whether their reports did or did not credit Finneran with the same sums as the defendant Mulrey's return. His return was false, and he knew it to be false. It would not help him if a foreman, and not he, had invented his falsehood.
The short counts also seem to us sufficient on their face. They state false pretenses made by the defendants to the city, with intent thereby to obtain the city's money, that Finneran had furnished to the city in a certain district, within a certain time, a certain number of horses, carts, and men, and that the city owed Finneran a certain sum on that account. They also state that the defendants requested the city to pay that sum for the teams so furnished, and that the city, believing these false representations, was induced by them to pay, and did pay, the said sum to Finneran. They then deny that Finneran had furnished any teams, and that the city owed him any money on that account, all of which, they allege, the defendants then knew. The pretenses are stated specifically enough, as is also the mode in which they effected their purpose. See 2 Russ. Crimes (6th Ed.) 531, and note o; Reg. v. Lee, 9 Cox, Cr.Cas. 460; Com. v. Hooper, 104 Mass. 549; Com. v. Howe, 132 Mass. 250, 258; Com. v. Dunleay, 153 Mass. 330, 26 N.E. 870; People v. Dimick, 107 N.Y. 13, 30, 14 N.E. 178.
Without going into further detail, it is enough to say that we are of opinion that the motion to quash properly was overruled. The intent to defraud the city is alleged sufficiently in all the counts. See Com. v. Howe, 132 Mass. 250, 258.
Several rulings were asked and refused after the evidence was in. The first which we shall take up, by reason of its connection with the short counts, is to the effect that the evidence does not support these counts, but that there is a variance between the evidence and the counts, because in these cases as in the others, the instrument of deception was a false return in writing, and it is not set out. It is argued that the short counts, if good, can be supported only by proof of oral representations. But notwithstanding what is said in Dwyer v. State, 24 Tex.App. 132, 137, 5 S.W. 662, cited by the defendants (1 Starkie, Cr.Pl. 97, 98), we regard it as unnecessary to set out the words used by the...
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