5. FALSE PRETENSES (§ 51*) — TRIAL - QUES-ligation imposed upon them: that if they deTIONS FOR JURY.

6. CRIMINAL LAW (§ 371*) — EVIDENCE — IN-law went conclusive, and which the jury had no TENT-OTHER OFFENSES.

right to speculate upon or inquire into, had On a trial for larceny by false pretenses prompted them to rest upon other evidence. as to the character of sets of the works of Held that, while the rule that the failure of a Shakespeare and other authors, and the price defendant to become a witness cannot be perwhich customers had agreed to pay therefor, ev-mitted to create any inference against him is idence as to false representations of a kindred guarded seduously, and while the argument of nature touching the sale of extremely valuable the district attorney went rather far, the rights

of the defendants were sufficiently protected by | from Mary L. Rogers. The same defendants the charge.

were found guilty on an indictment charging a [Ed. Note. For other cases, see Criminal conspiracy to commit larceny from Mrs. Law, Cent. Dig. § 1693; Dec. Dig. § 730.*] Rogers. The defendants Farmer and Rosen10. CRIMINAL LAW (§ 822*)-INSTRUCTIONS- field were found guilty upon one count chargCURE BY OTHER INSTRUCTIONS.

[5] 3. The material representations relied upon by the commonwealth as having been made by one or more of the defendants, and as having induced Mrs. Rogers to give to the defendants or some of them very large sums of money aggregating more than $80,000, related to the character of certain RUGG, C. J. These are indictments against sets of the works of Shakespeare and of the several defendants for larceny and con- other authors and to the price which cusspiracy to commit larceny. The defendants tomers therefor already had agreed to pay Powers and Rosenfield were found guilty for them. There was evidence tending to upon one count charging larceny of $3,000 | show that the defendant Powers, giving the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

false name of Clark, called upon Mrs. Rogers | a gross fraud in securing such extraordinary and referred to a set of Shakespeare, which sums of money by entire strangers from a afterwards he brought to her, saying that: woman who was utterly ignorant of the "It was a very rare set and if she would subject-matter and who acted without the take them and keep them during the summer slightest advice from any one aside from he would sell them for her in October. the defendants. 'I can get $75,000 for that set of Shakespeare.' He said there were 10 or 12 sets of Shakespeare that went together; that there was one set they were unable to get; and that if they could get the whole sets he could sell them for $75,000."

Later the defendant Rosenfield called at Mrs. Rogers' house, saying:

"I came from Mr. Clark [the name falsely given by Powers] in regard to the Shakespeare set. There was one series missing and I have succeeded in finding it, but I found it in manuscript form, in loose sheets, and Mr. Powers [Mr. Clark] says that you will pay for binding it and that it would go right in with your set.' He said further that there were 10 sets of these Shakespeare, and that he "could sell the whole set for $75,000. I have a customer who will pay it. I am collecting a set for a millionaire in Chicago who is building a handsome house and wants a handsome library and he has commissioned me to get it for him. * I can put those books right into that library and you can get $75,000 for them."

There were other incidents which indicated a scheme of imposters. The defendants gave false names and false addresses, so that no trace might be found of them. Rosenfield made a statement to an officer of the bank on which Mrs. Rogers gave him a check or draft as to the proposed application of the money wholly inconsistent with the representations made to Mrs. Rogers. These circumstances should be considered together and not separately in order to determine the falsity of the representations. Treating them collectively there was enough to warrant the jury as rational men in concluding that these representations were fraudulently false and that there was no such customer and no such agreement. Com. v. Howe, 132 Mass. 250; Jules v. State, 85 Md. 305, 36 Atl. 1027. While some representations were promissory only, others were positive statements of existing facts of a nature calculated to influ

Still later when he came to get more ence the conduct of such a person as Mrs. money Rosenfield said—

"he had sold the books to the Chicago man; that she asked him the name of the Chicago man, and he said he couldn't tell his name, as he was doing business through the man's agent, by the name of Gilman, but he said he had sold all the books to that man for $250,000."

Other representations of the same general nature were made. The judge ruled that representations relating to the future and those as to value of the sets of books did not constitute false pretenses. But he left the cases to the jury with instructions in substance that the defendants might be found guilty of making fraudulent representations as to existing facts.

Rogers. There was no error in submitting this matter to the jury.

[6] 4. Evidence was admitted against the exception of the defendant Farmer tending to show that within about two years before the beginning of his relations with Mrs. Rogers, Farmer had made to two other persons false representations of a kindred nature touching the sale of extremely valuable publications to persons of great wealth. This testimony was limited strictly to the issue of Farmer's intent in his personal transactions with Mrs. Rogers. The principle of law governing the introduction of evidence of this kind has been discussed with fullness and accuracy in The defendants contend that there is no Com. v. Jeffries, 7 Allen, 548, 83 Am. Dec. evidence that the representations as to a 712, and in Com. v. Jackson, 132 Mass. 16. purchaser and his agreement to buy the books Summarily stated it is that it is not compe were false to the knowledge of the defend- tent to show one crime committed by a deants and made by them with intent to de- fendant for the purpose of proving that he fraud, and hence that no crime was proved. committed another distinct crime. Guilty There was evidence that the total value of the conduct in one instance does not follow from books sold to Mrs. Rogers was less than like conduct on another occasion. Moreover, $5,000. No question can be raised that it is not fair that a defendant should be callthese representations were not material or ed upon in the course of a trial to exonerate were not calculated to deceive, or that they himself from offenses not charged against did not induce Mrs. Rogers to part with her him in the indictment. But commonly it is money. There was no explicit testimony to necessary to prove a particular intent as an the direct effect that there was no such cus- essential ingredient of the crime alleged. tomer and that no such agreement was made. The thought of the human mind is not caIn the nature of things it would be difficult to pable of direct observation. It can be deterprove the negative of such representations mined only from external signs and from the by positive evidence. These representations knowledge the person is proved to possess. showed on their face inherent indications Some offenses are not so plain and distinct of improbability. When brought to the test and so connected with visible facts that the of common sense they appear fantastical accompanying intent can be inferred without and visionary. They challenge the credulity further aid. Obtaining money or property of ordinary people and hardly could impose by fraudulent pretenses under some condiupon persons of experience and poise. All tions belongs to this class. Conduct of one on

Com. v.

under similar circumstances if appearing to | spect. The principle of the common law be parts of a comprehensive scheme by which secured by the Constitution that one chargdifferent persons are to be defrauded may ed with crime cannot be compelled to testify have an important bearing upon his purpose in any prosecution against himself, and that in doing a particular act. Com. v. Stuart, his failure to avail himself of the statutory 207 Mass. 563, 568, 93 N. E. 825; privilege of becoming a witness cannot be Dow, 217 Mass. 473, 105 N. E. 995; King v. permitted to create any inference against Boyle, [1914] 3 K. B. 339, 347; Makin v. his innocence, is guarded sedulously. The Atty. Gen., [1894] A. C. 57, 65, and cases argument of the district attorney seems to cited in each opinion. This principle was have gone rather far. But something must not narrowed by the decision nor by anything be left to the discretion of the judge in the said in Noyes v. Boston & Maine R. R., 213 conduct of the trial. A mere reference in Mass. 9, 99 N. E. 457. Although the facts argument by the district attorney to this bring the present case close to the line, no principle of law when correctly stated and reversible error is shown in admitting the without prejudicial color or setting is not evidence. It had some tendency to show a error if accurate instructions are given fully fraudulent intent on the part of Farmer. to protect the rights of the defendant. But [7, 8] 5. The request of the defendant Pow- the trial judge must be jealous to see to it ers that if the jury were satisfied that the that any such reference is made fairly and representations made by him to Mrs. Rogers, in such way that in fact no prejudice shall to the effect that there was one missing set come to the defendant. The subject was of Shakespeare, would not have induced considered at length in Com. v. Richmond, 207 her to part with her money if it had not been Mass. 240, 247, 250, 93 N. E. 816, 12 Ann. combined with the representation as to the Cas. 1269, where many of the authorities value of $75,000 for the sets together, mani- now relied on by the defendant as well as festly was refused rightly. It is enough to our own decisions were reviewed. The law constitute the crime of obtaining money by of this commonwealth as there restated false pretenses and thus of larceny under shows that the charge protected the rights the statute if the fraudulent representation of these defendants. 1 was a decisive although not the sole influence operating upon the mind of the person to induce the giving up of money. Other state ments or considerations not amounting to false pretenses may co-operate to that result without impairing the force of the criminal act. Com. v. Drew, 19 Pick. 179, 183. The false statement of fact embodied in the request was not the only one for which the defendant Powers might have been found to have been responsible. She may have been induced also by the representation of Rosenfield that he had a customer for the complete set at $75,000. If the jury found that Pow-plied to the evidence and the issues. ers and Rosenfield were acting with a common design to defraud, Powers would have 1 The charge upon this point was as follows: been bound by that statement made by Rosen- "I have already told you, I am sure, that defendants in prosecutions for crime have the field. The jury were told plainly that Pow- privilege of taking the stand in case they deers was not to be convicted unless Mrs. Rog-sire to. That is a privilege that is given; it ers parted with her money by reason of false representations fraudulently made by the defendants and the distinction between state ments of past or present facts and of opinions, promises and prophecies was explained with accuracy.

[9] 6. The district attorney during his closing argument said:

*

"Now because the defendants do not take the stand no presumption, the law says, is to be taken against them. I will say again the law places a cloak over these defendants and doesn't oblige them to take the stand."

Seasonable objection was made to this statement. The court instructed the jury accurately and fully as to the rights of the defendants not to testify and that no adverse inferences could be drawn from their failure to become witnesses, and as to the proper scope of arguments of counsel and the significance to be attached to such arguments. There was no error in this re

[10, 11] 7. The instructions that the jury, in deciding whether or not they were satisfied beyond a reasonable doubt that the pretenses were false, might without direct evidence to that effect draw such inferences from what was in evidence as they thought ought to be drawn, and as they were "satisfied beyond a reasonable doubt should be drawn," and further that they might draw such inferences as they felt "compelled to draw as reasonable men," were not too broad when taken in connection with the charge as a whole, and were accurate as ap

is not an obligation which is imposed upon them. They can or they need Lot take the stand. It matters not in case they decide not to take the stand what motives prompt them to come to that decision. You should not speculate in your minds as to the reason why they did it. If that is the situation, if the testimony closes without the defendants having taken the stand, you are to consider that they are disqualified from taking the stand, from some reason or other. The situation, so far as your duty is concerned, is exactly as if they could not get from the place where they sit at the bar to this stand, and as if there was some reason which prevented them from getting up here. You have got to take this case and decide it entirely aside from that fact. Of course, they did not take the stand. That, of course, is apparent before your eyes. But I say that is a right which the law gives them. They may decline to take the stand and no inference whatever is to be drawn against them by reason of the fact. A reason which is sufficient, so far as the law goes conclusive, and which you have no right to speculate upon or inquire into, has prompted them to rest upon other evidence in the case.'

ness.

[12] Other exceptions appear not to be should be applied to make good the indebtedargued and may be treated as waived. But a careful examination of the record fails to disclose any reversible error. Exceptions overruled.

(218 Mass. 546)

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2330, 2331; Dec. Dig. § 582.*] 3. CORPORATIONS (§ 585*) — CONSOLIDATION — AGREEMENT-EXCHANGE OF STOCK-REFUSAL

-INDIVIDUAL LIABILITY.

Where defendants constituted a committee in charge of a corporation consolidation scheme under which the stockholders of the W. Company were entitled to certain exchange rights, and they undertook to decide for themselves

DREYFUS. OLD COLONY TRUST CO. that complainant's assignor had forfeited his

et al.

(Supreme Judicial Court of Massachusetts. Suffolk. Sept. 11, 1914.)

1. CORPORATIONS (§ 582*) - CONSOLIDATION AGREEMENT-CONSTRUCTION.

A corporation consolidation agreement, section 6, provided that all stockholders of the W. Company, both common and preferred, desiring to assent to the consolidation, must deposit their shares within a specified time, that such deposits should be in the manner following, to wit: (a) That any holder of preferred stock must deposit his certificates duly indorsed for transfer; and (b) that any holder of common stock must deposit his certificate duly indorsed, and must, contemporaneously with such deposit, execute and deliver a subscription agreement, obligating himself to pay $15 for each share of the common stock so deposited by him. The next paragraph provided that such subscription should be payable when called for by the committee, and this was followed by a clause that any depositor failing to pay any installment of such subscription as and when the same became due should, in the absence of absolute discretion of the committee, forfeit all rights and interest under the plan and agreement and any installments paid. Then followed two paragraphs, the first authorizing the committee to limit the time for receiving deposits, and the second providing that holders of stock not deposited within the time limited should acquire no rights under the consolidation plan, except on express consent of the committee. Held, that the provision for forfeiture applied to the common stock only, and that the holders of preferred stock, though also holders of common stock, were entitled to deposit each independently of the other, so that a depositor of preferred stock was entitled to share in new stock under the plan, regardless of the fact that he had also deposited common stock and failed to pay his subscription thereon.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2330, 2331; Dec. Dig. § 582.*]

2. CORPORATIONS (§ 582*) AGREEMENT TRUSTS TURE OF FUND.

-

rights to exchange, and decided the question erroneously, they were not entitled to relief from personal liability, for damages sustained thereby, on the ground that they were justified in refusing to make the exchange until the question had been judicially determined.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2332-2337; Dec. Dig. § 585.*] 4. CORPORATIONS (§ 585*)-CONSOLIDATIONACTS OF COMMITTEE-INDIVIDUAL LIABILITY.

Where a corporation consolidation agreement provided that the committee in charge of the plan should not assume any individual responsibility for its execution or for the result of any steps taken, and that the members should not be individually liable for any act or omission of any agent or employé selected by the committee, or for any error of judgment or mistake of fact or law, except for their own individual willful malfeasance or neglect, the committee was the agent of all persons who participated in the plan, and hence neither the committee nor the depositary trust company were individually liable for damages resulting from the committee's erroneous refusal to recognize a depositor's transfer rights arising out of the deposit of his preferred stock.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2332-2337; Dec. Dig. § 585.*]

Report from Supreme Judicial Court, Suffolk County.

Suit by Emanuel Dreyfus against the Old Colony Trust Company and others, to obtain a decree for the recovery of 323 shares of the second preferred stock of the United States Worsted Company and for damages. A decree was revived in favor of defendant by a single justice, and the case reported to the full court. Decree of specific performance without damages.

Powers & Hall, of Boston, for plaintiff. J. L. Thorndike and H. S. Davis, both of BosCONSOLIDATION ton, for defendants. Thos. Nelson Perkins ASSESSMENTS-NA- and William H. Best, both of Boston, for respondent Old Colony Trust Co.

LORING, J. This suit grows out of a plan for the purchase and consolidation of the old United States Worsted Company, the Lawrence Dye Works Company, and the Silesia Worsted Mills, Incorporated, which was issued by the individual defendants as a committee in October, 1912.

Where a corporation consolidation agreement provided for the deposit of the common and preferred shares of the W. Company with a trust company for exchange, and required the depositors of common stock to sign a sub, scription contract to pay $15 a share subject to call of the reorganization committee, the amount derived from such subscriptions was not a trust fund, and the fact that a depositor of both preferred and common stock subsequently refused to pay his common stock subscription did not deprive him of the right to an exchange of The plan begins by stating the condition his preferred shares on the ground that one of the three companies and the reasons who is indebted to a trust fund cannot with- which had led to the conclusion that it was draw his proportion of the depleted fund, but the trustee may insist that the sum to which desirable that they should be consolidated by the beneficiary would be otherwise entitled passing into one ownership. The suit now