Com. v. Benjamin

• Decision Date: 09 February 1971
• Citation: 266 N.E.2d 662,358 Mass. 672
• Parties: COMMONWEALTH v. Carl BENJAMIN (and companion cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 662

266 N.E.2d 662

358 Mass. 672

COMMONWEALTH v. Carl BENJAMIN (and companion cases).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 4, 1971.

Decided Feb. 9, 1971.

Walter J. Hurley, Boston, for defendant Benjamin.

Thomas J. Herbert, Quincy, for defendant Lawrence.

John B. Murphy, Jr., for defendant Monroe.

William P. Homans, Jr., Boston, for defendant Roberts.

Dante J. DeMichaelis, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and CUTTER, REARDON and QUIRICO, JJ.

CUTTER, Justice.

A Superior Court judge has reported for our determination ¹ pre-trial questions arising with respect to indictments of several defendants. ²

I.

Each defendant was charged in a single but separate indictment with conspiracy to forge, utter, and steal. Each such conspiracy indictment contained 122 counts. ³ The defendants filed motions to dismiss these indictments or to require the Commonwealth to elect one count of each indictment upon which it would prosecute. In the motions, it is asserted 'that each of the 122 counts allege(s) in identical language a conspiracy to forge, utter, and steal, each naming the same alleged co-conspirators, and differ only as to the date on which the offence is alleged to have been committed.' It is also contended (a) that conspiracy is a continuing offence and (b) 'that the Commonwealth has taken a single conspiracy and has fragmented it into 122 counts on the principle that each overt act committed pursuant to the conspiracy constitutes a separate and distinct conspiracy.' This is apparent, so the motions contend, 'from the dates alleged, the identical language of the charging section of the counts, the identity of the alleged co-conspirators, the similarity of documents provided by the Commonwealth in support of each count, (and) the statements made by the Commonwealth during pre-trial hearings.'

The trial judge made the following findings (among others): (1) that each defendant was charged in identical language in each of 122 counts; (2) that dates of the alleged offences were identical for each defendant; (3) that in certain companion indictments for conspiracy to make false entries in corporate books, one indictment with one count was returned against each defendant 'alleging a continuing conspiracy between * * * October 1, 1964, and April 30, 1967'; and (4) that particulars filed by the Commonwealth 'allege a single ongoing conspiracy * * * (among) the defendants to accomplish the illegal * * * forging of' notes or checks, uttering them, and larceny. Each set of particulars refers to a different or separate alleged forgery. ⁴

The judge then concluded 'that the single all pervading charge is that * * * (there was a conspiracy) to commit larceny' from a single victim by forging and uttering fictitious notes and checks which, in effect, would amount to only one 'continuing unlawful agreement' to commit a number of crimes. He ruled that the fragmentation of a single conspiracy 'into 122 separate criminal offences,' was detrimental to the defendants. He allowed the motions to dismiss.

The bills of particulars do strongly indicate that the form of the indictments is clumsy and repetitious. In effect, 122 counts have been employed to set forth what could reasonably be viewed as a single conspiracy (or perhaps only a few conspiracies). The form of the indictments, however, may not obscure the circumstance that each count sufficiently sets forth a serious criminal charge which, read with the related bill of particulars, adequately advises each defendant of the charge against him. Each count refers to a particular criminal act, which at trial may be proved to be either (a) an unlawful act in furtherance of a continuing conspiracy, or (b) in itself, the unlawful object of a conspiracy to commit that act. The statement of the substantive charges against the defendants has not been shown to be inadequate in any way. The defendants' arguments on the alleged fragmentation of the charges seem to be addressed merely to inconsequential niceties of form.

The conspiracy indictments could and should have been expressed more concisely and in a manner more consistent with the clear, informative statements in the narrative bill of particulars. That the prosecution could have produced less complex charges, however, does not mean that the indictments are necessarily invalid or deficient. They are in essentially the statutory form and are sufficient to allege a criminal offence. See G.L. c. 277, § 79; Commonwealth v. Bessette, 345 Mass. 358, 359--361, 187 N.E.2d 810. They are not open to dismissal.

The motions to dismiss attempt more than an attack upon formal defects apparent on the face of the indictments. In effect, they seek to show a variance between each count and the bill of particulars supporting that count. They may attempt also to show that the 122 separate counts are inconsistent with the evidence actually presented to the grand jury. ⁵

A variance between an indictment and a bill of particulars under it is not ground for the dismissal of an indictment which is sufficient because in the statutory form or for other reasons. Commonwealth v. Iannello, 344 Mass. 723, 726--727, 184 N.E.2d 364. The purpose of a bill of particulars is to 'give the defendant * * * reasonable knowledge of the nature and grounds of the crime charged.' See G.L. c. 277, § 40; Commonwealth v. Baron, 356 Mass. 362, 364, 252 N.E.2d 220 (see also p. 365). The Iannello case, supra, makes it clear that the sufficiency of an indictment is not to be measured by the particulars designed to inform defendants of the charges against them. These (see c. 277, § 40) may be amended by court order. ⁶

The present record shows no variance between the indictment and the particulars. Proof of the facts set out in the particulars would support conviction of the offence charged in each related indictment. In view of the wide range of proof permitted in establishing a conspiracy (see e.g. Commonwealth v. Stasiun, 349 Mass. 38, 50--53, 206 N.E.2d 672), each separate offence charged as being an object of a conspiracy could be proved under the indictments as they stand.

The judge also should not have tested the validity of the 122 conspiracy counts by whether the evidence before the grand jury would support a conviction on those counts respectively. There was no occasion for him to make any such inquiry in considering the validity of the indictments. See Commonwealth v. Geagan, 339 Mass. 487, 499, 159 N.E.2d 870. We, of course, do not suggest that the judge could not consult the grand jury minutes in preparation for trial, in determining whether witnesses at trial had made prior inconsistent statements, or for other reasons.

The judge's report asks two questions, the answers to which are controlled by the foregoing discussion, viz. (1) whether, on the statements of counsel and other documents before him, he was entitled to make the findings underlying his dismissal of the indictments; and (2) whether, if that record did not warrant dismissal of the indictments, he could use the grand jury minutes as a basis for his action. Although the questions asked are not entirely apposite, we answer them in the negative. ⁷

Our holding that the dismissal of the indictments was not proper should not be regarded as approval of the practice of obtaining multiple, repetitious, and overlapping indictments (or counts in indictments) where fewer indictments or counts not only would suffice, but probably would much more clearly present the charges. Multiple indictments, such as those in the present cases, impose an unnecessary burden on courts, juries and parties. They cause unnecessary expense and confusion, and may lead to unduly long trials. We regard the practice as objectionable. Where new indictments, more simply framed, may still be obtained within the period of the applicable statute of limitations, we think a trial judge may and should require a district attorney to attempt to obtain them.

II.

The Commonwealth was permitted to amend indictments charging particular substantive offences (forging and uttering, larceny, larceny by false pretences) by substituting a new date for the particular date set forth in each of many counts of the indictments. Some of the amendments effected only a minor correction in the date of the particular offence alleged. Other amendments made a change of several months. The amendments originally were allowed by judges other than the judge filing the report. The latter judge denied the defendants' motions to dismiss the amended indictments or to strike the amendments.

The Commonwealth justifies the amendments (1) as pertaining to dates, which are matters of form rather than substance, and (2) was authorized under G.L. (Ter.ed.) c. 277, §§ 20, 35A. See Commonwealth v. Manooshian, 326 Mass. 514, 516, 95 N.E.2d 659. The judge's report and the record do not contain enough facts to enable us to determine whether any prejudice to the defendants was caused by the particular amendment ⁸ relating to the date alleged concerning any particular check, note, or instrument said to have been forged. If at trial such prejudice appears, or if the change appears to be based on significant error (so that the amendment materially changes the work of the grand jury), the motion to strike the amendment may be renewed. The present record discloses no error in denying the motions.

III.

Indictments (over 2,000 counts alleging forgery, uttering, and resulting larceny) were returned on October 21, 1968, charging each defendant as a principal. Counsel and the defendants were allowed to examine the documents relied upon by the Commonwealth. Concerning motions to dismiss these indictments, the defendants asserted that the actual signature upon many of the documents was not written by any defendant. The assistant district attorney stipulted 'that the Commonwealth's evidence in one or more instances would...