
    Commonwealth vs. Samuel G. Morrill & another.
    » is no defence to an indictment for obtaining goods by false pretences, that the party defrauded made false representations to the defendant as to the goods so obtained; nor that the goods were of less value than alleged in the indictment.
    It is no ground for arresting judgment, on an indictment for obtaining goods by false pretences, that one of the pretences set forth therein is not distinctly negatived, provided the indictment contains an allegation of one or more false pretences, upon which the defendant may be convicted, which are properly negatived and established by the evidence.
    This was an indictment, which alleged that the defendants, Samuel G. Morrill and John M. Hodgdon, on the 17th of September, 1850, at Newburyport, “ devising and intending one James Lynch by false pretences to cheat and defraud of his goods, did then and there unlawfully, knowingly and designedly falsely pretend and represent to said Lynch that a certain watch which said Morrill then and there had, and which said Morrill and Hodgdon then and there proposed and offered to exchange with said Lynch for two other watches belonging to said Lynch, was a gold watch of eighteen carats fine, and was of great value, to wit, of the value of eighty d (/liars; and the said Lynch, then and there believing the said false pretences and representations so made as aforesaid by said Morrill and Hodgdon, and being deceived thereby, was induced by reason of the false pretences and representations so made as aforesaid to deliver, and did then and there deliver, to the said Morrill the two watches aforesaid, belonging to said Lynch, and of the value of twenty dollars, and the said Morrill & Hodgdon did then and there receive and obtain the two said watches, the property of said Lynch, as aforesaid, in exchange for the said watch, so represented as a gold watch as aforesaid, by means of the false pretences and representations aforesaid, and with intent to cheat and defraud the said Lynch of his said two watches, as aforesaid; whereas in truth and in fact said watch so represented by said Morrill and Hodgdon as a gold watch, eighteen carats fine, and of the value of eighty dollars, was not then and there a gold watch, and was not then and there eighteen carats fine, and was then and there of trifling value,” &c.
    At the trial in the court of common pleas, before Hoar, J., it appeared in evidence, that Lynch represented his watches, one of which was of silver, and the other of yellow metal, as worth fifty dollars; and on the testimony of the only witness for the commonwealth, who was a judge of the value of Watches, they were worth not exceeding fifteen dollars. Lynch testified, that his silver watch cost him fifteen dollars; that he received the other in exchange for two, which cost him respectively seven dollars and thirteen dollars; and that he believed it to be worth thirty dollars.
    The defendant requested the presiding judge to instruct the jury, that if Lynch’s watches were not worth fifty dollars, or some cons derable part of that sum, but were of merely trifling value, this indictment could not be maintained. But the judge instructed the jury, that it they supposed that each of the parties was endeavoring to defraud the other, and Lynch knew that his watches were of little value, the jury should not convict the defendants merely because they had the best of the bargain ; but that if the defendants made the false representations charged in the indictment, with the intent to defraud, knowing them to be false, and they were such as would mislead and deceive a man of ordinary prudence, and Lynch, by reason of the representations, and trusting in them, parted with his property and was defrauded, it was not necessary to show that he was defrauded to the extent charged in the indictment, provided he, in good faith, parted with property which he believed to be valuable, and was defrauded to any substantial amount, for example, to the amount of five dollars ; and that the defendants might be convicted, although, from the mistake of Lynch, in over-estimating his property, he might not have been cheated to so great an extent as he at the time supposed.
    The jury found the defendants guilty, who thereupon moved in arrest of judgment, on the ground that the indictment was insufficient; and this motion being overruled, they alleged exceptions to the order of the court, overruling the same, and also to the instructions aforesaid.
    
      W. C. Endicott, for the defendant.
    Clifford, attorney general, for the commonwealth.
   Dewey, J.

The exceptions taken to the instructions of the presiding judge cannot be sustained. If it were true that the party, from whom the defendants obtained goods by false pretences, also made false pretences as to his goods, which he exchanged with the defendants, that would be no justification for the defendants, when put on trial upon an indictment, charging them with obtaining goods by false pretences, knowingly and designedly in violation of a statute of this commonwealth. Whether the alleged misrepresentation of Lynch, being a mere representation as to the value or worth of a certain watch, and an opinion rather than a statement of a fact, would be such false pretence as would render him amenable to punishment under this statute, might be questionable, but supposing that to be otherwise, and it should appear that Lynch had also violated the statute, that would not justify the defendants. If the other party has also subjected himself to a prosecution for a like offence, he also may be punished. This would be much better than that both should escape punishment, because each deserved it equally.

The further instruction to the jury, that it was not necessary for the government to show, that the party was defrauded to the whole extent charged in the indictment; and therefore, that if the value of property obtained was over-estimated by Lynch, and was also over-stated in the indictment, yet, if shown to be of substantial value, the defendant might properly be convicted, notwithstanding such discrepancy, was right. The exceptions to the instructions of the presiding judge are therefore to be overruled.

The further question arises upon a motion in arrest of judgment for the insufficiency of the indictment. The false pretences set forth in the indictment are, that the defendant falsely pretended that a certain watch, which he offered to exchange with James Lynch, was a gold watch and of eighteen carats fine, and was of great value, to wit, of the value of eighty dollars; and the indictment then alleges that it was not a gold watch, and was not eighteen carats fine, and was of trifling value. The objection urged is, that the alleged pretences are not all of them fully and directly negatived; particularly that the allegation, that the defendant represented the watch to be of the. value of eighty dollars, is not properly alleged to have been false, by the averment that it was of trifling value, without naming any sum as its value smaller than eighty dollars, or directly negativing that pretence.

The answer to this is, that a single false pretence properly alleged in the indictment, and proved as laid, is sufficient to warrant a conviction. If more than one is set out, it is not necessary to prove the whole, but proof of one, and showing that the goods were obtained by means thereof, is sufficient. Hill’s case, Russ. & By. 190; Rose. Crim. Ev. 75, 367.

Here is a false pretence set forth, which was a pretence of a fact, and that a material one to influence the party, namely, that the watch was of gold, eighteen carats fine, and this pretence is directly negatived in the indictment. The false pretence being correctly set forth and accompanied with all the proper allegations, and the verdict being a general one, finding the defendant guilty upon the whole indictment, the motion in arrest cannot prevail, if it be found that there is a want of an allegation amounting to a direct negative, as to the value of the watch as represented. The more important representation, one more properly the subject of an indictment, if knowingly and designedly falsely stated, and one upon which a man of ordinary prudence might act, is directly negatived. That being so, the motion in arrest cannot prevail. Judgment on the verdict  