Com. v. Carson

• Decision Date: 25 June 1965
• Citation: 208 N.E.2d 792,349 Mass. 430
• Parties: COMMONWEALTH v. Charies R. CARSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 792

208 N.E.2d 792

349 Mass. 430

COMMONWEALTH v. Charies R. CARSON.

Supreme Judicial Court of Massachusetts, Hampden.

Argued April 5, 1965.

Decided June 25, 1965.

Efrem A. Gordon, Springfiled, for defendant.

Warren K. Kaplan, Asst. Atty. Gen., for the Commonwealth.

Before WILKINS, C. J., and WHITTE-MORE, KIRK, SPIEGEL and REARDON, JJ.

REARDON, Justice.

These are appeals under G.L. c. 278, §§ 33A-33G, following the conviction of the defendant on three indictments respectively charging him with larceny of capital stock, larceny of a promissory note, and larceny of money proceeds from the sale of stock, all being the property of one Charles L. Furcolo, and all of the value of more than $100. For the purposes of this opinion a lengthy review of the evidence is unnecessary, and we set out the facts only in summary form.

In 1960 Dr. Charles L. Furcolo of Springfield joined with Bernard Francis, an attorney, and Harris Osman, both of Connecticut, in the purchase of a race track in Hancock, Massachusetts, known as Hancock Raceway, Inc. (the corporation). Thereafter Furcolo asked the defendant Charles R. Carson, his tax consultant, to hold nominal title to Furcolo's stock (fifty class A voting shares and fifty class B nonvoting shares), as well as a promissory note for $25,000 issued by the corporation, as Furcolo did not wish his involvement to be known publicly. The evidence as to what was promised Carson for his services by Furcolo is conflicting. Furcolo testified that he promised Carson only his expenses, a directorship, and $5,000 a year 'if the track warrants it.' There was evidence that Furcolo promised Carson five shares of nonvoting stock and $5,000 a year as comptroller. Carson testified that Furcolo initially promised him ten shares of each class of stock in addition to other perquisites and that Furcolo later, in appreciation of Carson's efforts, increased Carson's interest to twenty-five shares of each.

The corporation's activities in 1960 were marked by stress occasioned both by its need for money and by increasing disagreement among the principal parties interested in its affairs. In September, one Dario Bacciochi of Providence, Rhode Island agreed to obtain financing in exchange for a substantial stock interest and legal title to all class A stock by way of a voting trust. Hostility between Furcolo and Carson appears to have begun when Carson, with other participants in the corporation, decided to do business with Bacciochi, although Furcolo 'went along' with this decision.

Further hostilities followed, and on February 15, 1961, Furcolo, through an attorney, demanded that Carson return the stock and the note. Carson's attorney replied on behalf of Carson, denying that Furcolo had any right to the stock or note. During the summer of 1961 Carson, with legal counsel, negotiated to sell his 'interest' in the stock, all of which stood in his name. A buyer was ultimately found. On December 5, 1961, a closing was held in New York City and Carson sold to one Rizzo for $150,000 his 'interest' in the fifty shares of class A voting stock and the fifty shares of class B nonvoting stock, the former represented by voting trust certificates. A dispute took place involving the note, which Rizzo claimed was to be included in the sale. One of Carson's attorneys, Henry A. Moran, Jr., testified that en route to New York Carson told him that the note belonged to Furcolo and that at the closing Carson was 'vehement' with respect to the note, protesting that it was not part of the sale. What took place at this stage of the closing is unclear. Carson testified that his other attorney, James A. Reed, advised him to turn over the note and assured him that Furcolo had been 'taken care of.' Mr. Reed's testimony is directly opposite. He testified that he had 'a very casual knowledge of that note,' that he was in no way engaged to negotiate its sale, and at no time did he assure Carson that Furcolo had been paid in full. The dispute between Carson and Rizzo was finally resolved by Carson's agreement not to negotiate the note and 'not to make any demand for payment of any principal or interest of said note.'

1. We are principally concerned with the indictment charging the defendant with stealing a promissory note worth more than $100. The defendant argues that the judge's refusal to allow inquiry as to the value of the note, on cross-examination of Furcolo, was erroneous and that this error was not cured by the judge's reversal of his ruling in his charge since the reversal did not enable the defendant to obtain Furcolo's opinion as to whether the note was worthless. This argument overlooks the fact that, in correcting his ruling, the judge told the jury to consider 'that Dr. Furcolo would answer the question asked that the stock [note? ¹ was worthless at the time he was talking about.' This instruction fully protected the defendant. Moreover, while Furcolo did not testify to the worth of the note, he did respond in the affirmative to the question, 'They [the corporation] couldn't have paid your note if they wanted to?'

The defendant argues that the Commonwealth has failed to prove that the note was a valid and authorized obligation of the corporation. The short answer to this argument is that the defendant offered no evidence to show that the note was unauthorized. Regularity of internal corporate proceedings in such a case is presumed. Stauffer v. Koch, 225 Mass. 525, 530-531, 114 N.E. 750. Federal Natl. Bank v. Shoolman, 276 Mass. 191, 192-193, 176 N.E. 919. Fletcher, Private Corporations (1954 ed.) § 486, p. 508. See Moroni v. Brawders, 317 Mass. 48, 52-53, 57 N.E.2d 14, and cases cited.

We think the question of value was properly submitted to the jury, who were told that to constitute larceny the property taken must be of some value and that if the value was in excess of $100 the offence would be a felony. G.L. c. 266, § 30. The jury could have found from the testimony of Mr. Francis, president of the corporation, that the note was worth more than $100. Mr. Francis testified to the solvency of the corporation and stated that Furcolo 'put in $25,000 into the corporation when we first started * * * and this was evidence of his payment * * *.' Also pertinent to this question is the testimony of Mr. Francis that he received (and later sold to Rizzo) a note of the corporation for $23,000 at the same time the note alleged to have been stolen was issued.

2. The defendant has argued at some langth that the convictions on the two other indictments should be reversed or set aside. The jury were instructed by the judge to consider each indictment separately. They were told that it was 'perfectly possible * * * for you to find that the Defendant was not guilty of stealing the stock and guilty of stealing the money--or not guilty of stealing the money and guilty of stealing the stock--or guilty of stealing the stock and also guilty of stealing the money proceeds from the sale of the stock' (emphasis supplied). The judge further informed the jury that if they found the defendant guilty of stealing the stock and also the money, 'the disposition of those cases will be a matter for the Court * * * to decide. * * * [T]he Court will have in mind the difficulties arising from a situation where a jury might consider that they might be convicting a Defendant twice for larceny of the same property * * *' (emphasis supplied). The defendant complains that this instruction permitted him to be found guilty, under the 'proceeds' indictment, of essentially the same offence charged in the 'stock' indictment. The Commonwealth appears to agree that one cannot be found guilty both of stealing shares of stock and of stealing the proceeds from the sale of those shares but urges that the...