Com. v. Baker

• Citation: 330 N.E.2d 794,368 Mass. 58
• Parties: COMMONWEALTH v. I. Charles BAKER (and a companion case).
• Decision Date: 06 June 1975
• Court: United States State Supreme Judicial Court of Massachusetts

Page 794

330 N.E.2d 794

368 Mass. 58

COMMONWEALTH

v. I. Charles BAKER (and a companion case).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 5, 1974.

Decided June 6, 1975.

John P. White, Jr., Boston, for Nathan Baker.

Monroe L. Inker, Newtonville (Charlotte A. Perretta, Boston, with him), for I. Charles Baker.

Terence A. Troyer, Asst. Dist. Atty. (Bonnie H. MacLeod-Griffin, Asst. Dist. Atty., with him), for the Commonwealth.

Before TAURO, C.J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

QUIRICO, Justice.

Each of the two defendants, I. Charles Baker and his brother Nathan A. Baker, was charged with twenty-two crimes of larceny of more than $100, each crime being charged in a separate count. The first four counts of each indictment alleged that the money stolen was the property of the Continental Casualty Company (Continental) and the remaining counts alleged that it was the property of the American Casualty Company (American). Each count alleged the crime to have been committed between two dates specified therein. The same set of dates appearing in a count of one indictment also appeared in the count bearing the same number in the other indictment. ¹

The two indictments were tried before a jury in a single trial under the provisions of G.L. c. 278, §§ 33A-- 33G. The defendants were found guilty and sentenced on all counts. They appealed to the Appeals Court and the cases were then ordered transferred to this court. See G.L. c. 211A, § 10, inserted by St.1972, c. 740, § 1.

The defendants filed a consolidated assignment alleging a total of twenty-seven errors, but in their joint brief they have not argued all of them. We therefore limit our consideration to the issues argued and treat the rest as waived. S.J.C. Rule 1:13, 351 Mass. 738 (1967). Lolos v. Berlin, 338 Mass. 10, 13--14, 153 N.E.2d 636 (1958). Commonwealth v. Martin, 358 Mass. 282, 290, 264 N.E.2d 366 (1970). Gelinas v. New England Power Co., 359 Mass. 119, 127, 268 N.E.2d 336 (1971). The defendants argue that the trial judge committed errors in (1) denying their motions for particulars, (2) refusing to read the minutes of the grand jury who had returned the indictments, (3) allowing the Commonwealth's petition under G.L. c. 277, § 57A, concerning venue, (4) denying their motions for directed verdicts of not guilty made at the close of the Commonwealth's opening statement and repeated at the close of the Commonwealth's case, (5) making various rulings relating to the examination of witnesses and the admissibility of evidence, and (6) refusing to give the jury certain instructions requested by the defendants and giving the jury certain instructions claimed to have been incorrect. Before discussing these alleged errors it may be helpful to summarize briefly some of the evidence showing the setting in which these cases arise.

At all times material to these cases Continental and American were licensed to issue surety bail bonds (bail bonds) in this Commonwealth. Baker Brothers Insurance Agency, Inc. (the agency), a Massachusetts corporation, became an agent for the issuance of bail bonds for Continental in 1959, and for both Continental and American on July 1, 1969. All bail bonds issued by the agency before the latter date were issued on bahalf of Continental, and all those issued after that date were issued on behalf of American. Each defendant owned one-half of the outstanding shares of stock of the agency. Between 1959 and 1971 the defendant Nathan A. Baker was the president, and the defendant I. Charles Baker was the treasurer of the agency. In addition, they and one other person were the directors of the agency. The agency was duly licensed to issue bail bonds as agent for either Continental or American or both in this Commonwealth in the years in question.

The contracts between the agency and the surety companies required the agency to file with each company a monthly list of all bail bonds issued by the agency on bahalf of the company, and to pay the premiums due to the company, less the commissions to which the agency was entitled. A typical monthly report listed several hundred bail bonds issued by the agency for the company, listing each bond by the name of the principal, the amount thereof, the gross and net premiums, and the date of issuance.

On various dates, the earliest being November 20, 1967, and the latest being June 18, 1971, the agency issued twenty-two bail bonds, the first four of these on behalf of Continental and the eighteen thereafter on behalf of American. None of these twenty-two bonds was included in any of the agency's monthly reports to either company, nor did the agency pay the company any part of the premium for any of these bonds issued in its name. The Commonwealth contends that each defendant committed larceny as to each of these twenty-two bonds, that each of the twenty-two counts in the indictment against one defendant alleges the crime of larceny with respect to a different one of the twenty-two bonds, and that the twenty-two count indictment against the other defendant alleges the same crimes with respect to the same bonds.

All counts are in substantially the same form. All allege that the named defendant, between two stated dates, at the county of Middlesex, 'did steal money' (emphasis supplied) of the amount of more than $100, the property of the named owner (Continental in four counts and of American in eighteen counts of each indictment). The counts are thus in substantially the statutory form authorized by G.L. c. 277, § 79, ² with the addition of the date and place of the offense charged.

Each of the twenty-two bail bonds in question was signed either by one of the defendants or by an employee (subagent) of the agency, all of which persons were authorized to sign such bonds in behalf of the agency.

As to the bonds involved in the five counts numbered 10, 16, 17, 18 and 22 of each indictment, there was testimony that a premium was paid therefor, the premium for one having been paid directly to the defendant Nathan Baker and the premiums for the other four having been paid to one of the subagents, and there was further evidence permitting an inference that the subagents paid the premiums over to one of the defendants or to an employee of the agency.

As to the bonds involved in the remaining seventeen counts of each indictment the situation is as follows. As to count numbered 7 there was testimony by a witness that a premium was paid therefor to one of the subagents, and testimony by the latter that he had no memory of the transaction. As to the remaining sixteen counts numbered 1 through 6, 8, 9, 11 through 15, and 19 through 21, there was either (a) no testimony whether any premium was paid, (b) testimony that no premium was paid, or (c) testimony by a witness who had no memory whether a premium was paid.

The judge submitted all counts against both defendants to the jury for their verdicts. He instructed the jury that as to each count they could find the defendant named therein not guilty, guilty of larceny of the bond involved or guilty of larceny of the premium paid for the bond, and that if they found a defendant guilty on any count they must state whether he was found guilty of larceny of the bond or of the premium. The jury returned verdicts finding each defendant guilty on all counts against him. In the five counts numbered 10, 16, 17, 18 and 22, they found the defendants guilty of larceny of the premiums, and in the remaining seventeen counts numbered 1 through 9, 11 through 15, and 19 through 21, they found the defendants guilty of larceny of the bonds.

The judge imposed on each defendant a sentence on each count of one year in the house of correction and a fine of $100, the sentences to be served concurrently; and he stayed execution of the sentences and payment of the fines pending the outcome of the present appeals. There is no indication whether, in sentencing the defendants, the judge considered the applicability of G.L. c. 266, § 40, relating to the punishment of 'a common and nortorious thief.'

For the reasons stated below, we affirm the judgments on the five counts numbered 10, 16, 17, 18 and 22 on which both defendants were found guilty of larceny of premiums, and we reverse the judgments on the seventeen counts numbered 1 through 9, 11 through 15, and 19 through 21 on which both defendants were found guilty of larceny of bonds.

A. Larceny of Bonds.

The defendants made pre-trial motions for particulars by which they requested, inter alia, details concerning, '(t)he nature of the property described as money which the Defendant(s) . . . (are) alleged to have stolen.' The Commonwealth objected to the allowance of the motion and it was denied. At all times before trial and at least through the prosecutor's opening statement to the jury, the Commonwealth's position seems to have been that it would prove that the defendants had received premiums on the twenty-two bail bonds in question and that they had stolen the surety companies' shares of those premiums.

On the fifth day of the trial the Commonwealth offered one of these bonds as an exhibit without first having offered any evidence that the defendants had received a premium therefor. This precipitated a long bench conference in which the prosecutor contended (a) that by issuing the bond without receiving a premium the defendants stole from the surety company its right to receive a premium, and, either additionally or alternatively, (b) that the defendants, by filing with the surety companies a series of false monthly statements from which they had intentionally omitted many bonds issued, had, by that false pretense, been enabled to continue to pledge the credit or obligations of the companies as to bonds issued thereafter.

On the fifteenth day of the trial there was another bench conference on the same general subject. At the start of that conference the Commonwealth's position seemed to...