Com. v. David

• Citation: 141 N.E.2d 827,335 Mass. 686
• Parties: COMMONWEALTH v. Wady A. DAVID et al.
• Decision Date: 09 April 1957
• Court: United States State Supreme Judicial Court of Massachusetts

Page 827

141 N.E.2d 827

335 Mass. 686

COMMONWEALTH v. Wady A. DAVID et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 7, 1957.

Decided April 9, 1957.

Frederick T. Doyle, Asst. Dist. Atty., Boston, for the Commonwealth.

Arthur L. Brown, Boston, S. Roy Remar, Boston, for defendant Abraham.

Harry P. Haveles, Boston, for defendant Young.

Joseph J. Balliro, Boston, for defendant David.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

An indictment, returned January 18, 1952, charged that the defendants and one Foley (for whom no exceptions are pending) on December 1, 1951, 'and on divers other days * * * between that day and the day of the presenting of this indictment, did conspire together to engage in unlawful traffic in a certain narcotic drug, to wit: heroin.' David was indicted also on charges of illegal possession of heroin and illegal possession with intent unlawfully to sell it. Young and Abraham, together with Foley, were also charged with being accessories to David's alleged possession of heroin with intent to sell it. The defendants and Foley were tried together in December, 1952. ¹ The jury found the defendants and Foley guilty only on the conspiracy indictment. Each of the bills of exceptions of the three defendants seeks review of (a) rulings on evidence, (b) the refusal of the trial judge to direct a verdict for the defendant, and (c) the denial of the defendant's motion for a new trial. Certain of the defendants argue other exceptions, discussed later. There was evidence from which the jury were warranted in finding the facts set out below.

Young since 1935 had been a registered pharmacist. From 1938 on, he owned and ran a drug store on Washington Street in Boston. He had known Abraham for at least eight years. Abraham and his mother, Mrs. Kaplan, lived at 1 Haven Street (about 100 to 200 feet from the drug store) where Foley was a roomer. Foley, sometimes called 'Duggy,' had been known to Young as a customer, 'for about a year from January, 1952.' Although Young claimed not to know Foley by his name or nickname, a narcotics officer had been told by Young on August 9, 1950, where he might find 'Duggy.' Foley had been seen going into the drug store ten to fifteen times. David had lived at 119 Tyler Street between two and three years. He and Abraham were partners operating a brewery service company at 106 Tyler Street where they also conducted a social club together.

On the morning of January 8, 1952, Mrs. Young ordered 20,000 gelatin capsules from a wholesale drug firm in Cambridge, for a customer for whom she had ordered 600 the day before. Young that afternoon went to Cambridge and obtained these capasules in four yellow boxes, each labelled '5,000 each empty Gelatin Capsules No. 5 size.' He returned to his drug store with them about 3:30 P.M. Foley was present. At Foley's request, the labels on the boxes were removed and Foley then took them to Abraham's house at 1 Haven Street in a manila bag. Shortly thereafter, Abraham drove in an automobile to 1 Haven Street, entered the house, obtained the paper bag containing the capsules and drove with them about 4 P.M. to the corner of Tyler and Oak streets and delivered them at David's apartment at 119 Tyler Street. About 6 P.M. David came out of 119 Tyler Street and was apprehended by narcotics agents and police and was taken to his apartment. The capsules were found there in the manila bag, still in the unopened boxes from which the labels had been removed.

David was taken to police headquarters after his apartment was searched. David's wife promptly called Abraham's mother, who was driven over to see her by Abraham, who learned while driving her back to Haven Street of David's arrest. Abraham returned to his office at 106 Tyler Street from which two narcotics agents took him to police headquarters about 10:15 P.M.

That evening Young and his wife were questioned by narcotics agents and police. Young admitted that he had sold the 20,000 capsules and that this was a large order, for the largest order he had ever had before was 1,000. He claimed to have delivered the capsules to a 'tall, dark man, somewhat skinny type' whom he had not seen before or since. He at first said he received '$18 a box and then said it was $50 for the four boxes.' He gave somewhat conflicting statements about whether he or the purchaser scraped the labels off the boxes. Young admitted that the purchaser 'asked him to scrape the labels off, he didn't want the people to know where he got them.' Young, when asked if he had any idea what the purchaser was going to use the capsules for, replied 'He could put perfume in them.' Young's wife in her testimony claimed the purchaser 'said he was going into the manufacturing business.'

David, when interrogated at his apartment, claimed not to have known the man who delivered the empty capsules to him. In answer to a question he said 'Somebody left it [the package with the capsules] here and promised to give me $50 the next day.'

There was expert testimony by narcotics agents that the empty capsules, although having a legitimate use for various pharmaceuticals, were 'the type that are used for containers of heroin' and also that they were 'the type that are found around the possession of those active in illegal sale of narcotics'; that in a survey of this item, it was found that about 70% of the druggists questioned did not even stock the size because of its rare use; that 'capsules of this type have a list price but it is not a regular item to be sold anywhere.' One narcotics agent testified that, although he had seen pharmaceuticals in this type of capsule, when he had seen them there had 'always been heroin or narcotics in them.' There was testimony, admitted against all the defendants, without objection, that the empty capsules were similar to those filled capsules mentioned below (admitted in evidence only against David), which contained heroin. Over objection there was testimony that this type of filled capsule was purchased by drug addicts for personal consumption at $2 apiece.

The following further evidence was admitted only against David. While the narcotics agents were at David's apartment, a search was made of a shed on the roof of 119 Tyler Street, reached up a common stairway near David's apartment. There, wedged behind a water tank, was a pouch filed with white powder, which, when analyzed, proved to be heroin, 1,421 capsules with heroin in them, a can of milk sugar and a set of fine photographic weighing scales. Heroin is usually diluted with milk sugar to reduce its strength and thus make a larger quantity for sale.

It is not necessary to summarize other evidence which the jury could have failed to believe.

1. The three defendants filed motions to quash the indictment on the ground that it did not set forth a crime. Abraham took no exception to the denial of his motion. Young and David have not argued their exceptions. There is no merit in the contention, even if the matter can be considered in the absence of an exception by Abraham, as he contends. Compare Commonwealth v. Andler, 247 Mass. 580, 142 N.E. 921; Commonwealth v. Conroy, 333 Mass. 751, 756-757, 133 N.E.2d 246. The indictment is in substantially the statutory form for this offence found in G.L. (Ter.Ed.) c. 277, § 79. See Commonwealth v. Galvin, 323 Mass. 205, 210-211, 80 N.E.2d 825. By alleging conspiracy 'to engage in unlawful traffic in * * * heroin,' it sufficiently charges conspiracy to violate G.L. (Ter.Ed.) c. 95, § 212, as amended by St.1938, c. 321, § 2, and St.1951, c. 575, that is, to engage in the sale, delivery and exchange of heroin. See Commonwealth v. Downey, 288 Mass. 147, 149, 192 N.E. 512. Compare Commonwealth v. Chagnon, 330 Mass. 278, 281-282, 113 N.E.2d 50. The statutory phrase 'unlawful traffic', see Stewart v. Hugh Nawn Contracting Co., 223 Mass. 525, 527-528, 1122 N.E. 218; Commonwealth v. Moriarty, 311 Mass. 116, 121, 40 N.E.2d 307; Bruno v. United States, 1 Cir., 289 F. 649, 655; United States v. One Reo Truck Automobile, 2 Cir., 9 F.2d 529, 530; People v. Murawski, 394 Ill. 236, 242, 68 N.E.2d 272; People v. Dunford, 207 N.Y. 17, 20, 100 N.E. 433, appropriately refers to the subject matter of § 212.

2. David and Young contend that it was error to permit a question to a narcotics agent whether the capsules were 'the type * * * found around the possession of those engaged in illegal sale of narcotics' on the ground that it was prejudicial and involved conclusions of law. It was competent to show that this type of capsule was commonly used to distribute heroin. The use of the term 'illegal sale' was comparable to the use of the words 'abortion kit,' held harmless in Commonwealth v. Aronson, 330 Mass. 453, 461, 115 N.E.2d 362, ar to the testimony that certain needles were of a type and kind capable of causing an abortion considered in Commonwealth v. Dawn, 302 Mass. 255, 259, 19 N.E.2d 315. See also Commonwealth v. Cheng, 310 Mass. 293, 298, 37 N.E.2d 1010, and cases cited.

The trial judge did not err in permitting another narcotics officer to testify that 'capsules in the form as appear in exhibit No. 6 with the heroin, are purchased by drug addicts, for personal consumption.' The reference to exhibit 6, which included the capsules found in the shed above David's apartment, was unobjectionable as to David against whom exhibit 6 was admitted. Although the judge expressly 'limited to David' any description of exhibit 6, Mrs. Young testified without objection that the type of capsule included in exhibit 6 was similar to the capsules sold by Young, which each defendant could have been found to have had in his possession at some time on January 8, 1952, and thus the reference to exhibit 6 was not improper with respect to the other defendants. The evidence was properly admitted to describe a potential unlawful use of empty capsules of this type. The...