Commonwealth v. Coe

115 Mass. 481, 1874 Mass. LEXIS 241

• Court: Massachusetts Supreme Judicial Court
• Decided: September 5, 1874
• Status: Published

Opinion

Wells, J.

The indictment alleges that the defendant falsely pretended that a certain certificate of shares of corporate stock was good and genuine and of value as security for a loan of money which Ferris was induced to make to him thereon. The pretended certificate is set forth, and purports to be a certificate that the said John Ferris is the owner of the shares of stock which it represents.

1. One objection raised by the motion to quash is that the indictment does not show how Coe could pledge such stock, or use it to secure a loan from Ferris, or in any way defraud Ferris by means of it; Ferris being abeady the apparent owner. The transaction represented by the indictment, if. genuine, would be simply that the borrower prepares his security by causing the shares of stock, whether owned by himself or procured from others for the purpose is immaterial, to be transferred to the name of the proposed lender, and a certificate issued accordingly. Upon procuring the loan, the delivery of the certificate completes the security. The certificate, although previously made in the name of the lender, does not become his in fact until the loan has been perfected and the certificate delivered to him in pursuance of its purpose. If the certificate is forged, or false and fraudulent in its preparation, it is manifest that he, is defrauded when induced to take it as genuine and advance money in reliance upon it. The offer of the certificate for such a purpose is a representation that it is what it purports to be upon its face. Cabot Bank v. Morton, 4 Gray, 156. Commonwealth v. Stone, 4 Met. 43. The indictment sufficiently sets forth in what manner Ferris was defrauded by means of the certificate.

2. The certificate is an instrument complete in itself, and requires no further allegations to fully set forth the right or contract of which it is a symbol, as was necessary in Commonwealth v. Ray, 3 Gray, 441, and Commonwealth v. Hinds, 101 Mass. 209. And besides, this offence consists in the use of false tokens, and not the forgery of a written instrument.

3. It is unnecessary that the indictment should set forth in its terms, or by description, the check received for the loan. It is presumed to have been given and received as payment of the sum of money agreed to be lent. Its designation as a “ check and order for the payment of money ” sufficiently indicates its character ; and as a description of the property obtained by the false pretences, would be good. Commonwealth v. Brettun, 100 Mass. 206. But there is also in the indictment an allegation that the defendant did obtain the sum of seven thousand dollars, of the property of said Ferris.

4. It is indeed alleged that the defendant procured, and Ferris was induced to part with, the money as a loan only. But it is also alleged that he thereby did obtain it with intent to cheat and defraud. If so obtained, it is none the less a fraud because obtained in the form of a loan. Commonwealth v. Lincoln, 11 Allen, 233.

5. Such representations relate only to the validity and value of the security, and not to the means or ability of the party to pay; and are therefore not within the exception requiring a writing. Gen. Sts. c. 161, § 54.

6. The allegation that the certificate “ was of the tenor following,” must be referred to the time when the false representation was made, of which it constitutes the main part. The copy correctly sets forth its tenor.

As to the objections taken at the trial:

1. The indorsements upon the certificate form no part of it, They are not required to be set out, either as a part of the means of deceit, or as a description of the false token used. Their appearance upon the certificate when produced does not therefore occasion a variance.

2. It is only necessary that the indictment set out the false representations upon which the property was obtained. That a genuine note was given is a matter of evidence, bearing upon the question whether the money was in fact obtained by means of the false certificate. The note forms no part of the offence charged, either by way of description or otherwise; and no allegation in regard to it is necessary. The offence is the same, with or without the presence of that fact. Ho variance comes from its appearance in the evidence..

3. The allegation of the indictment that the certificate was not a good, valid and genuine writing and certificate of ownership of stock, but was false, forged and counterfeit, and of no value, is sustained by the evidence. Even if it might have been of some value as a means of securing to the holder the one share, for which it was originally issued as a genuine and valid certificate, proof of such value does not constitute a variance. It is not a descriptive allegation.

4. Evidence of the possession and use of other altered anfalse certificates by the defendant, about the same time, whether before or afterwards, was competent to show that his possession of those, for the use of which he was indicted, was not casual and accidental. They were all between the dates of the transactions charged in the two counts. They were admitted and allowed to be used only to show guilty knowledge. For this purpose the evidence was admissible; and the instructions sufficiently guarded its use. Commonwealth v. Stone, 4 Met. 43, 47. Commonwealth v. Price, 10 Gray, 472. Commonwealth v. Edgerly, 10 Allen, 184.

5. The fact that the certificate was offered and received as security for the loan furnishes some evidence upon which it was competent for the jury to find that Ferris was thereby induced to part with his money. It is not necessary that there should have been any explicit declaration or express words to that effect, at the time of the negotiation. It was for the jury to determine how far the testimony of Ferris, that he “ had every confidence in ” the defendant, in reply to the question if he did not rather trust Doe than any security, was a denial of reliance upon the security.

6. The instruction upon this last point would be objectionable if it bore the significance which the defendant ascribes to it. The presiding judge suggested the query, whether, if Ferris had known it to be a forged and worthless piece of paper, he would have made the loan as he did; and then proceeded to say, “ If he would not, and was in fact induced to make the loan by the delivery of the certificate; and his belief in its genuineness and value,” and the jury find the other facts constituting the offence, it would be sufficient; adding also, “ And the fact, if it was a fact, that the defendant then entertained the purpose of repaying the loan at some future time, would not divest' the act of its criminality.”

The judge cannot fairly be supposed to have intended, by these propositions, to suggest the inquiry whether Ferris would have made the loan if he had known or supposed that Coe was guilty of fraudulently altering the certificate which he offered to him for security. Nor can we suppose that the jury would understand it in that way. If the attention of the judge had been called to the possible danger that the jury might so understand and misapply his remarks, they would undoubtedly have' been qualified and explained. But there was no suggestion of the kind at the time ; and no exception appears to have been taken to the instructions in this respect. On the contrary, the exception to this part of the instructions was expressly limited to that which related to “ the obtaining of money or property upon a loan.” The objection therefore, as now made, ought not to prevail.

7. The offence consists in obtaining property from another by false pretences. The intent to defraud is the intent, by the use of such false means, to induce another to part with his possession and confide it to the defendant, when he would not otherwise have done so. Neither the promise to repay, nor the intention to do so, will deprive the false and fraudulent act in obtaining it of its criminality. Commonwealth v. Tenney, 97 Mass. 50. Commonwealth v. Mason, 105 Mass. 163. The offence is complete when the property or money has been obtained by suck means; and would not be purged by subsequent restoration oi repayment. Evidence of ability to make the repayment is therefore immaterial and inadmissible. The possession of the means of payment is entirely consistent with the fraud charged. The evidence offered on this point did not touch.the question of falsity and fraud of the means by which the loan was obtained ; and was properly rejected.

8. The evidence would warrant the jury in finding that Ferris had money deposited to his credit at the bank where he kept Ms account, and therefore that his check was of value.

9. The only question raised by the exceptions in regard to which any considerable difficulty has been felt by the court, is that upon the admission of the writing in the body of the note given for the loan, as a standard of comparison of handwriting, by which to show that the alterations in the certificate were made by the defendant himself.

In his instructions to the jury the judge announced the correct rule of law, as maintained in tMs Commonwealth; that “ before any writing can be used as a standard of comparison, it must be shown, by clear and undoubted testimony, that the specimen offered as a standard is the genuine handwriting of the party sought to be charged.” He then proceeded to say that not only the signature, but the word “ January,” in the written date of the note, might be used for that purpose; assigning as a reason, “ for it is admitted that the defendant delivered this note to Ferris as his, the defendant’s, own promissory note.” This was after his attention had been called to the difference in the proof or admission as affecting the signature and as affecting the body of the note.

The defendant’s counsel rightly contends that the mere fact that the defendant delivered the note as his own would not prove tnat any part of it, except the signature, was Ms own handwriting, so as to make it a proper standard of comparison. But it is to be observed that the question, as thus presented in connection with the instructions to the jury, related only to the point of admissibility. The attention of the court was called to the extent of the previous ruling admitting the note as a standard of comparison ; the counsel insisting that only the signature had been sufficiently proved to be submitted to the jury. The court ruled that the body of the note was also shown to be the defendant’s writing, sufficiently to be considered by them. No point was made and no instructions asked as to the province of the jury in dealing with the evidence as laid before them, or the effect or weight to be given to it. The question then is not of the sufficiency of the reason given at that time by the judge for his ruling, but of the correctness of the ruling itself. We think that from the whole bill of exceptions taken together, it does not appear that the ruling of the judge was based solely upon the fact of delivery of the note by the defendant. From the testimony of Ferris it appears that having the money to lend he went to the defendant’s office and offered to lend it to him; and that the defendant then and there gave him the note and delivered to him the pretended security. The natural inference would be that the note was written at that time. Whether any one else was present does not appear. No one but Ferris was called, on either side, to testify in regard to the interview or the preparation of the note. What occurred during the trial, either in the manner in which the evidence came in or in the discussions or statements of counsel in regard to the preparation of the note, and the existence or nonexistence of other evidence upon that point, does not appear. But it is manifest that the unreported occurrences of the trial might give important significance to that which appears to be slight evidence as reported from the verbal testimony of the witness.

Upon the proposition of the government to use the promissory note as a standard the objection was general, not distinguishing between the signature and the other written portions of the note. In admitting it for that purpose, the court assign this as a reason for the ruling, in addition to the proof of delivery, to wit, “ the defendant having neither offered, nor proposed to offer any evidence in denial of the claim of the government that the writing in the note was the handwriting of the defendant.” This suggestion indicates that, in the view of the presiding judge, the failure to produce any evidence on that point, when such evidence, if it existed, would have been within the knowledge and control of the defendant, left the inference from the testimony of Ferris, that the note was prepared and dated by the defendant at the time of the loan, conclusive as a matter of fact.

Upon the question whether a given writing or written word is sufficiently proved to have been written by the defendant to allow it to be submitted to the jury as a standard of comparison, the judge at the trial must pass in the first instance. So far as his decision is of a question of fact merely, it must be final, if there is any proper evidence to support it. As in all questions of that nature, exceptions to the ruling at the trial will be sustained only when they show clearly that there was some erroneous application of the principles of law to the facts of the case, or that the evidence was admitted without proper proof of the qualifications requisite for its competency. Foster v. Mackay, 7 Met. 531. Rich v. Jones, 9 Cush. 329. Gorton v. Hadsell, 9 Cush. 508. Quinsigamond Bank v. Hobbs, 11 Gray, 250. Commonwealth v. Mullins,, 2 Allen, 295. Doud v. Hall, 8 Allen, 410. Lake v. Clark, 97 Mass. 346. Commonwealth v. Morrell, 99 Mass. 542. Gott v. Adams Express Co. 100 Mass. 320. Presbrey v. Old Colony Railroad, 103 Mass. 1. O’Connor v. Hallinan, Ib. 547. Gossler v. Eagle Sugar Refinery, Ib. 331. Commonwealth v. Williams, 105 Mass. 62. Lawton v. Chase, 108 Mass. 238. Nunes v. Perry, 113 Mass.

Considering the rule of law laid down at the trial, we think the judge must have been satisfied from the evidence and the course of the trial, and found as a fact, that the written part of the body of the note was in the handwriting of the defendant; and admitted it as a standard of comparison upon that ground. We cannot see from the exceptions that he was not warranted in so doing. If so, the writing was competent for the purpose; and the ruling and instructions not erroneous in law. Richardson v. Newcomb, 21 Pick. 315. Exceptions overruled.