Com. v. Abbott Engineering, Inc.

• Decision Date: 09 January 1967
• Citation: 222 N.E.2d 862,351 Mass. 568
• Parties: COMMONWEALTH v. ABBOTT ENGINEERING, INCORPORATED et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 862

222 N.E.2d 862

351 Mass. 568

COMMONWEALTH v. ABBOTT ENGINEERING, INCORPORATED et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 9, 1966.

Decided Jan. 9, 1967.

Manuel Katz, Boston (Daniel Klubock, Boston, with him), for defendants.

Warren K. Kaplan, Asst. Atty. Gen. (James B. Krasnoo, Sp. Asst. Atty. Gen., with him), for the Commonwealth.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.

WHITTEMORE, Justice.

These are appeals under G.L. c. 278, §§ 33A--33G, and bills of exceptions by the defendants Abbott Engineering, Incorporated (Abbott), and Charles A. Mogavero who were convicted under eleven indictments for larceny. The indictments, returned on February 12, 1965, alleged that the defendants, through a series of false representations made during 1959 and 1960, fraudulently obtained from Herschel H. Allen and Edward J. Donnelly, co-partners, doing business as the J. E. Greiner Company (Greiner) of Baltimore, Maryland, sums totaling $89,605.03. The indictments alleged also that the 'Massachusetts Port Authority * * * had general and special property' in the funds and that it had 'actual and constructive possession' of them.

The evidence tended to show that during 1959 and 1960 Mogavero was chairman of the board of directors of Abbott, Ralph S. Carr was its president, and Mogavero's wife, who had never been active in the affairs of the corporation, held all of the stock. Mogavero managed all the corporation's financial affairs and the procurement of contracts. Abbott entered into a cost-plus contract with Greiner on March 16, 1959, to do certain design work for Greiner in connection with a cost-plus contract of February 12, 1959, between Greiner and the Massachusetts Port Authority.

Carr testified that, at the time of each monthly billing to Greiner, beginning in April, 1959, and continuing through February, 1960, he presented a draft bill to Mogavero accurately reflecting the number of hours worked on the Greiner contract. On each occasion, Mogavero would return the draft bill to him, stating the amount which he required for the month, and directing that the number of hours shown be increased sufficiently to bring the bill up to the required amount. Carr prepared new invoices accordingly. The invoices were mailed each month to Greiner in Baltimore, and were paid by check. The checks were indorsed for deposit to the account of Abbott. There was evidence that on each invoice the charge for work for the period shown was more than the corresponding items on Abbott's books for that period and that the total of the excess was the amount alleged to have been stolen. Greiner submitted each of the eleven invoices to the Massachusetts Port Authority and was in each case reimbursed for the amount of the invoice.

1. The defendants' motions to strike.

There was no error in the denial of the defendants' motions to strike from the indictments the reference to the Massachusetts Port Authority. The purpose of G.L. c. 278, § 9, 'is to 'avoid the effect of objections as to the allegation of ownership.' Commonwealth v. Norton, 11 Allen, 110, 111. An averment and a showing that a * * * property interest in the thing stolen is in someone other than the thief and proof that the thief knew that he had no right to the property taken are sufficient.' Commonwealth v. Kiernan, 348 Mass. 29, 50, 201 N.E.2d 504, 516, cert. den. sub nom. Gordon v. Massachusetts, 380 U.S. 913, 85 S.Ct. 901, 13 L.Ed.2d 800. The references to the Authority were not surplusage. There was a basis for uncertainty as to the respective property interests of Greiner and the Authority. Hence, even if the reference to the Authority might have suggested that the Commonwealth and its taxpayers were the ultimate losers, the allegation would have been warranted. There is, however, nothing to indicate that the Commonwealth was financially concerned (see St.1956, c. 465, §§ 8, 9, and 11) and nothing in the allegation to suggest to the jury that it was.

2. The trial court's order that the jury be locked up.

The decision to isolate the jury during the trial on the request of the assistant attorney general lay in the discretion of the trial judge. No reason need be shown. Commonwealth v. Demboski, 283 Mass. 315, 319--320, 186 N.E. 589. There was no error. The suggestions of prejudice are at best entirely conjectural.

3. The testimony that bills under a separate contract were contemporaneously raised.

The defendants contend that the trial judge erred in admitting Carr's testimony that, in a substantially overlapping period, on instructions of Mogavero, Carr also altered the bills sent to the Metropolitan District Commission (M.D.C.), under a contract with it. Those altered invoices also showed more hours than had actually been worked. The jury were instructed that the evidence was allowed 'merely on the matter of showing intent on the part of Mr. Mogavero with respect to the matters which are the subject of these particular indictments; not for any other purpose but the matter of intent.' There was no error. The alteration of the M.D.C. invoices to obtain currently more than had currently been earned tended to show a like intent in the billings to Greiner. A criminal intent must be proved under an indictment for obtaining money under false pretences. G.L. c. 266, § 30. Commonwealth v. Louis Constr. Co. Inc., 343 Mass. 600, 604, 180 N.E.2d 83. Commonwealth v. Iannello, 344 Mass. 723, 735--736, 184 N.E.2d 364.

Although evidence is barred that shows no more than the commission of other like crimes (see Commonwealth v. Kosior, 280 Mass. 418, 423, 182 N.E. 852; Commonwealth v. Welcome, 348 Mass. 68, 70--71, 201 N.E.2d 827), 'evidence otherwise admissible does not cease to be so because it happens to show the commission of an independent crime.' Commonwealth v. Green, 302 Mass. 547, 552, 20 N.E.2d 417, 420. Evidence of other wrongful conduct may be received under this rule in order to show intent in the acts charged by the indictments. Commonwealth v. Robinson, 146 Mass. 571, 577--578, 16 N.E. 452 ('induced by the same motive'). Commonwealth v. Snell, 189 Mass. 12, 21, 75 N.E. 75, 3 L.R.A.,N.S., 1019. Commonwealth v. Dow, 217 Mass. 473, 480, 105 N.E. 995. Commonwealth v. Leventhal, 236 Mass. 516, 521, 128 N.E. 864. Commonwealth v. Butynski, 339 Mass. 151, 152, 158 N.E.2d 310.

In Commonwealth v. Jackson, 132 Mass. 16, 17--21, relied on by the defendants, the other sales of 'sound and kind' horses were earlier in time. In Commonwealth v. Stone, 321 Mass. 471, 472--474, 73 N.E.2d 896, the other false pretence was ruled to be not reasonably near in time, nor so similar to or connected with the crime charged as to show unity of plot and design. The facts distinguish also Noor Mohamed v. The King, (1949) A.C. 182 (Privy Council) where the evidence had been admitted to negate a special defence not raised by the defendant. In State v. Gilligan, 92 Conn. 526, 536, 103 A. 649, the 'evidence had already gone so far toward eliminating accident or mistake as to leave no reasonable doubt, in the absence of rebutting evidence, that the poison, if adminsitered by the accused, must have been knowingly administered.'

Carr's other testimony did not make further proof of intent unnecessary. The defendants admitted nothing. Apart from this testimony as to the M.D.C. billings, they had to explain only Carr's testimony of one series of billings under one contract. An explanation that there had been a mistake or a misunderstanding of instructions would lose credibility as the instances to be explained away multiplied.

In the foregoing discussion, we have set aside the question whether the evidence showed another crime. There was evidence that the M.D.C. contract, although in part a cost-plus contract, provided also for a fixed maximum payment. The evidence failed to show that the fixed maximum would not have been exceeded without the payment of the inflated invoices. We, therefore, accept the defendants' contention that the evidence did not show larceny by false pretences from the M.D.C. Commonwealth v. Louis Constr. Co. Inc., 343 Mass. 600, 604, 180 N.E.2d 83. It did, however, tend to show the general intent that was critical in respect of the Greiner invoices, that is, an intent to obtain from contract debtors more money than would otherwise be paid on the submission of invoices purporting to show work done to date. That the other acts were not shown to be criminal did not make the evidence of those acts inadmissible.

At no point in the trial was the other related conduct expressly referred to before the jury as criminal. We note, however, that in the charge the judge read from Commonwealth v. Stone, 321 Mass. 471, 474, 73 N.E.2d 896, an excerpt that expressly refers to 'criminal conduct on another occasion.' There was no exception to this and the defendants make no point of it in their brief. It does not appear that the defendants had contended at the trial that the raising of the M.D.C. invoices was not criminal. We see no basis for a reversal in this reference in the charge to the Stone case.

4. The testimony that certain 'employees' of Abbott were unknown.

Several witnesses, employees of Abbott, were permitted to testify at the trial that the names of certain persons placed on the Abbott payroll by Mogavero were unknown to them. The jury could have found it likely that, if these persons had been working for the corporation, they would have been known to one or more of the witnesses. This evidence tended to show Mogavero's dominance in the corporation's affairs and suggested his use of it, for his own ends. We discern no reversible error. Nothing in the record suggests Federal income tax violation by Mogavero. Commonwealth v. Valcourt, 333 Mass. 706, 717--718, 133 N.E.2d 217, is inapposite. That this evidence may suggest the possibility that Mogavero's action defrauded the creditors of Abbott did not bar it.

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