Com. v. Barrasso

• Decision Date: 06 June 1961
• Citation: 175 N.E.2d 251,342 Mass. 680
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Anthony C. BARRASSO.

Page 251

175 N.E.2d 251

342 Mass. 680

COMMONWEALTH v. Anthony C. BARRASSO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 1, 1961.

Decided June 6, 1961.

John F. Mulhern, Asst. Dist. Atty., Jamaica Plain, for the commonwealth.

Jerome D. Goodman, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, KIRK, and SPIEGEL, JJ.

WILLIAMS, Justice.

The defendant was found guilty on an indictment charging him with stealing on November 5, 1959, money 'of the amount and of the value in all of six thousand dollars, of the property of one John Judson Phillips.' He was sentenced for a term of from three to five years in the Massachusetts Correctional Institution at Walpole; the sentence was suspended and he was placed on probation. The case is here on his exceptions to the denial of a motion for the direction of a verdict of not guilty, to a ruling on evidence, and to the denial of his motion for a new trial.

There was evidence that Phillips was a musician employed in Washington, D. C. He first met the defendant through a mutual friend who informed him that the defendant had experience in the night club business. On November 4, 1959, Phillips and the defendant discussed the possibilities of entering into a business arrangement and the leasing of night club in Boston known as the 'Chantilly Lounge.' The defendant told Phillips that he and two others had been negotiating for the lease of the lounge and that Phillips 'may be substituted' in place of one of the others. On that evening Phillips went with the defendant and another person to the lounge and Phillips was introduced to one Murphy, the proprietor. On the next day, Thursday, November 5, the defendant informed Phillips over the telephone that the third party had been eliminated and asked him to send him, the defendant, a check for $6,000. He said that 'the lease had not been signed but the deal was in the final stages and that the deposit had to be put up on Friday, that Phillips had to get the money to him right away, and that the lease would be signed when the deposit was made.' In reliance on these statements Phillips sent the defendant a check for $6,000.

Phillips returned to Washington on November 6 and received a telephone call from the defendant telling him that the Chantilly deal had fallen through at the last minute; that he had some 'other deals on the fire and that he would like to keep the $6,000.' Phillips told him 'that if he were to keep the money, he would have to put it in an escrow account in my name and get a receipt and that I would want some kind of a telegram as a receipt for it.' The defendant sent him a telegram 'Am holding money as authorized by you to be used at discretion to negotiate for liquor license or night club.' On November 10 Phillips met the defendant in Boston. The defendant showed him an escrow receipt for $5,000 and said he had made a $1,000 deposit on the 'Celebrity Lounge' in Lowell. The same evening Phillips visited the Celebrity Lounge with the defendant, met a man who claimed to be the proprietor, and thinking that 'The whole situation seemed very unhealthy * * * decided it was time to get my money back.' The defendant said he would return the money but that it was 'too late in the evening and that they would talk about it in the morning.' On November 11 Phillips tried to reach the escrow man, who was the attorney of the defendant, and learned that he was away and would not be back until Monday, November 16. Phillips told the defendant that he had to return to Washington and agreed to take a promissory note for the money, payable on November 17, 'the day after * * * [the escrow man] returned.' The 'idea of the note originated with' the defendant. A note was drawn by an attorney for $5,900 to allow $100 for the fees of the escrow man. It was arranged that the defendant was to pick up the money on the sixteenth and that he would mail it to Phillips on the seventeenth, the date on which the note was payable. Phillips received no part of the money.

The note given to Phillips by the defendant, dated November 12, 1959, recited, 'It is expressly understood that acceptance of this note by John Judson Philips releases the said Barrasso from and renders null and void, any, and all agreements, contracts, promises, oral or written, between Anthony G. Barrasso and John Judson Philips from the beginning of time to the present.'

Murphy, the proprietor of the Chantilly Lounge, testified that although he had conversations with the defendant regarding the leasing of the lounge, 'he never had any concrete deal and had no financial arrangements with him.' In their talks he, Murphy, was referring to a part of the lounge and the defendant the whole lounge and 'because of this discrepancy the deal was off.'

There was no error in denying the motion for a directed verdict of not guilty. The larceny of which the defendant was convicted was that of obtaining money by false pretences. G.L. c. 266, § 30. To constitute this offence the Commonwealth must prove that the defendant made a false statement known or believed by him to be false with the intent that the person to whom it was made should rely upon its truth and that this person did rely upon it as true and as a...