Instruction 8.500, Criminal Model Jury Instructions for Use in the District Court

LARCENY BY FALSE PRETENSES

G.L. c. 266, § 30

The defendant is charged with larceny by false pretenses.

Obtaining property by false pretenses is a form of larceny which

consists of knowingly making false representations of fact, with the

intent that another person will rely on those false representations,

and by means of which the personal property of another is obtained.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove the following five things beyond a

reasonable doubt.

First: That the defendant made a false statement of fact;

Second: That the defendant knew or believed that the statement

was false when he (she) made it;

Third: That the defendant made the statement with the intent

that the person to whom it was made should rely on it as true;

Fourth: That such person did in fact rely on the defendant’s

statement as true; and

Fifth: That such person parted with personal property as a

result.

See also Instructions 3.140 (Knowledge) and 3.120 (Intent). For the definition of “property,” see

supplemental instruction 2 to Instruction 8.520 (Larceny by Stealing). If the property may be worth

more than $1,200, see supplemental instruction 5 to Instruction 8.520. If the crime is charged as

a single scheme, see supplemental instruction 6 to Instruction 8.520.

G.L. c. 277, § 39 (false pretenses means “[f]alse representations made by word or act of such a

character, or made under such circumstances and in such a way, with the intention of influencing

the action of another, as to be punishable”). Commonwealth v. Schackenberg, 356 Mass. 65, 73,

248 N.E.2d 273, 278 (1969) (definition of false pretenses); Commonwealth v. Leonard, 352 Mass.

636, 644-645, 227 N.E.2d 721, 727-728 (1967) (same); Commonwealth v. Kenneally, 10 Mass.

App. Ct. 162, 164, 406 N.E.2d 714, 718 (1980), aff’d, 383 Mass. 269, 418 N.E.2d 1224, cert.

denied, 454 U.S. 849 (1981) (same). See Commonwealth v. Crocker, 384 Mass. 353, 359-363,

424 N.E.2d 524, 527- 530 (1981) (uttering is not a lesser included offense in larceny by false

pretenses); Commonwealth v. Hamblen, 352 Mass. 438, 443, 225 N.E.2d 911, 914 (1967) (intent

to defraud a particular individual not required); Commonwealth v. Lewis, 48 Mass. App. Ct. 343,

350, 720 N.E.2d 818, 825 (1999) (repeating elements); Commonwealth v. Camelio, 1 Mass. App.

Ct. 296, 299, 295 N.E.2d 902, 905 (1973) (misrepresentation can be communicated through

agent); Commonwealth v. Louis Constr. Co., 343 Mass. 600, 605, 180 N.E.2d 83, 86-87 (1962)

(absurd, irrational or incredible misrepresentation may not suffice; submission of invoice is

implied representation that charges are correct; scienter and fraudulent intent distinguish offense

from civil deceit action); Commonwealth v. Anthony, 306 Mass. 470, 474-475, 28 N.E.2d 542, 544

(1940) (opinions and beliefs are not false representations unless speaker creates impression that

he is asserting knowledge of fact rather than opinion or judgment); Commonwealth v. Quinn, 222

Mass. 504, 511-514, 111 N.E. 405, 407 (1916) (same); Commonwealth v. Morrison, 252 Mass.

116, 122, 147 N.E. 588, 590 (1925) (misrepresentation can be made by expressive acts as well

as words; person entering sales contract impliedly represents that he intends to make a genuine

contract); Commonwealth v. Hildreth, 30 Mass. App. Ct. 963, 965, 572 N.E.2d 18, 20-21 (1991)

(intent to permanently deprive of property not an element of offense; intent to repay not a

defense); Commonwealth v. Stovall, 22 Mass. App. Ct. 737, 741-745, 498 N.E.2d 126, 129-131

(1986) (charge can be based on obtaining of loan rather than transfer of ownership; false

statement must be material, but need not be sole, cause of victim’s parting with property; intent to

permanently deprive of property not an element of offense; intent to restore property not a

defense); Commonwealth v. True, 16 Mass. App. Ct. 709, 711, 455 N.E.2d 453, 454 (1983)

(misrepresentation as to present intent to perform a promise will support a conviction, but

deceptive intent cannot be inferred solely from nonperformance); Commonwealth v. Edgerly, 6

Mass. App. Ct. 241, 261-264, 375 N.E.2d 1, 14-16 (1978) (deceptive intent can be inferred from

evidence that nonperformance was intended, e.g. that defendant knew that performance was

impossible); Kenneally, 10 Mass. App. Ct. at 176-177, 406 N.E.2d at 724-725 (deceptive intent

must exist at time of statement); Commonwealth v. Wright, 5 Mass. App. Ct. 860, 861, 365

N.E.2d 836, 837 (1977) (same; entering contract with intent not to fulfill it constitutes false

representation).