Com. v. Carroll

• Citation: 276 N.E.2d 705,360 Mass. 580
• Parties: COMMONWEALTH v. Robert W. CARROLL. (and a companion case 1 ).
• Decision Date: 08 December 1971
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 705

276 N.E.2d 705

360 Mass. 580

COMMONWEALTH v. Robert W. CARROLL. (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Hampden.

Argued Nov. 1, 1971.

Decided Dec. 8, 1971.

Samuel A. Marsella, Springfield, for defendant William J. Lyons, Jr.

Efrem A. Gordon, Springfield, for defendant Robert W. Carroll.

Matthew J. Ryan, Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, and HENNESSEY, JJ.

HENNESSEY, Justice.

Each of the two defendants was found guilty by a jury on an indictment charging him with receiving, and aiding in the concealment of, $300 of stolen money. The two indictments were tried together under the provisions of G.L. c. 278, §§ 33A--33G. The assignments of error which were argued before us concern the judge's denial of the defendants' motions for directed verdicts, and certain rulings of the judge as to admission and exclusion of evidence.

We summarize the evidence. Frank Purus, an employee of the Post House Restaurant in Springfield, closed the restaurant about 2 A.M. on December 1, 1969, and stole some of the restaurant's cash receipts for the day, which he estimated as being between $3,200 and $3,400. He went to New York City, and there stayed at a hotel and began to spend some of the stolen money. He had no money with him except that which he had stolen from the restaurant. While in New York City, he deposited $300 of the stolen money in a savings account at the Chemical Bank & Trust Company (Chemical Bank), ² intending to make several small deposits of the money in the account in order to avoid suspicion.

The attache case in which Purus kept most of the money was stolen from him, and was recovered with the assistance of police in New York City. They became suspicious after seeing the money in the attache case, questioned Purus, notified the Springfield police, and then arrested Purus. Thereafter Detective Carroll and Detective Lyons of the Springfield police went to New York City. On December 5, 1969, they took custody of Purus, who waived rendition. The $2,491.45 which had been in the attache case was turned over to them by the New York police. Carroll took possession, in an envelope, of $101 and some change, which had been taken from Purus at the time of his arrest. Carroll and Lyons went with Purus and a New York City police officer to the Chemical Bank and there Carroll received the cancelled bankbook of Chemical Bank and $300 cash (in a separate envelope) which had been in that bank. Carroll testified that he was then ninety-nine per cent sure that the $101 and $300 were part of the money stolen from the Post House Restaurant, but listening to Purus convinced him that the money belonged to Purus.

At a bar in the Bronx, Carroll gave one envelope and its contents of about $101 to Purus, saying: 'This is yours. You keep it. Just don't mention it to anybody.' Purus never saw the $300 again after Carroll had received it in New York City. Carroll, Lyons, and Purus then proceeded to the Connecticut Turnpike toward Springfield. Carroll tore up the Chemical Bank bankbook, and said to Purus, 'If you don't say nothing about this money, as far as you're concerned, it don't exist,' and, 'We'll see what we can do about getting you a suspended sentence or porbation, and then we'd stick by you.' Carroll also said that they would get a particular lawyer to defend Purus, and would get a particular District Court judge to hear the case. Carroll asked Lyons, 'We can do that, can't we?' Lyons replied, 'Yes.' When they arrived in Springfield, Purus was booked at the police station, and he was told to write a statement and Carroll would tell him what to say. The statement did not mention the $300 or the $101. Lyons was not present during the writing of the statement but both Lyons and Carroll signed the statement. At the police station Purus was searched by the booking officer. At that time he had $67.20 on his person.

Purus was arraigned in the District Court on the day after he was brought back from New York City. Lyons was present, and told Purus to plead not guilty, since the judge they wanted was not sitting on the case. Purus then pleaded not guilty. About a week later Purus was returned to the District Court. The particular lawyer of the 'public defenders" office who had been mentioned by Carroll during the trip back from New York approached Purus at the District Court and told him he had been appointed as his attorney by the court. Purus had never been asked if he wanted the 'public defender' to represent him. The lawyer told the clerk of the court that there would be a change of plea to guilty. The lawyer expected to dispose of the case in the District Court. Lyons spoke to the judge and cited the good conduct of Purus on the trip back from New York, and the absence of a prior criminal record, as reasons why the judge should go easy on Purus. Purus had told Lyons and Carroll on their return trip from New York that he did have a criminal record. The judge bound the case over to the Superior Court.

The next day Lyons visited Purus at the jail and said he did not understand why the judge acted as he did on the case. Later, about a week before the case came up in the Superior Court, Lyons visited Purus again at the jail in order to have Purus sign a release of the money so it could be returned to the Post House Restaurant. Lyons told Purus not to worry, that everything would turn out all right. Subsequently, Purus pleaded guilty in the Superior Court, and received a sentence of fifteen months.

Twenty-four hundred and some dollars of the recovered money was returned to the restaurant by Carroll and Lyons.

1. Both Carroll and Lyons argue that directed verdicts should have been ordered because there was no jurisdiction in the Massachusetts court to try these offences. 'Criminal laws have no extraterritorial validity. They will not be enforced outside the jurisdiction of the sovereign by whose authority they are enacted.' Commonwealth v. Booth, 266 Mass. 80, 84, 165 N.E. 29, 31; Commonwealth v. Parrotta, 316 Mass. 307, 310, 55 N.E.2d 456. The defendants' first contention is that the evidence does not warrant a conclusion that they ever possessed the stolen money in Massachusetts. This premise fails. The jury were clearly warranted in concluding that the $300 in Carroll's possession in New York was still held by him when he reached Springfiled. Further, as discussed elsewhere in this opinion, the evidence was sufficient to prove that Lyons also received and aided in the concealment of the money as a principal with Carroll in a common criminal endeavor.

The further argument is that the receiving of the money occurred in New York or Connecticut, not Massachusetts, and that receiving of stolen goods is not a continuing offence. This argument also fails. In the circumstances, the jury were warranted in finding that the unlawful receiving of the money took place in Massachusetts, because the defendants had lawful custody of the money until they reached Springfield. Further, the gravamen of the offence alleged in the indictments before us, and as contained in the pertinent statute, ³ includes the words that the defendants 'did receive and aid in the concealment of . . .' (emphasis supplied). The evidence supports an inference that at least the concealment aspect of the crime occurred in Springfield. Therefore, the crime may be punished in Massachusetts. See Commonwealth v. Cullins, 1 Mass. 116; Commonwealth v. Andrews, 2 Mass. 14, 22--24. Similarly, we have held that the crime of larceny, which includes the element of asportation, may be punished in Massachusetts if the thief brings the stolen goods into this State after acquiring them outside the jurisdiction. COMMONWEALTH V. WHITE, MASS., 265 N.E.2D 473.^A The reasoning in analogous cases is consistent with our conclusion here. Commonwealth v. White, 123 Mass. 430, 433; Commonwealth v. Welch, 345 Mass. 366, 370--371, 187 N.E.2d 813. 'Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power.' Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735. Lyons also argues that, as to him, aside from the jurisdiction issue, the evidence was insufficient in other respects to warrant a guilty verdict against him. There was no error. Competent evidence was presented from which the jury could properly infer that all material allegations of the indictments had been proved. Commonwealth v. Hollis, 170 Mass. 433, 436, 49 N.E. 632; Commonwealth v. Boris, 317 Mass. 309, 314--315, 58 N.E.2d 8; Commonwealth v. Holiday, 349 Mass. 126, 129, 206 N.E.2d 691; Commonwealth v. Baron, 356 Mass. 362, 365--366, 252 N.E.2d 220. The evidence warranted a finding that both Lyons and Carroll knew that the $300 was part of the stolen money, and that Lyons was present when Carroll returned the $101 to Purus and when Carroll tore up the bankbook. Lyons was also present, and participated to a limited degree, in the conversation in which Carroll promised leniency and cooperation to Purus. Finally, Lyons' conduct and statements at the District Court and the jail were consistent with his participation in the crime. It was not necessary for the Commonwealth to show that Lyons actually possessed the $300 or any part of it, since there was evidence that Carroll had the money and the inference was warranted that Carroll and Lyons were participants in a common criminal endeavor. Commonwealth v. Lussier, 333 Mass. 83, 128 N.E.2d 569; Commonwealth v. Hamblen, 352 Mass. 438, 225 N.E.2d 911.

2. Both defendants assign as error the judge's ruling in permitting a statute to be read to the jury, viz, G.L. c. 266, § 48. ⁴ They contend that the jury may have inferred that criminal responsibility could attach to the defendants...