Com. v. Greenberg

• Citation: 160 N.E.2d 181,339 Mass. 557
• Parties: COMMONWEALTH v. Joseph M. GREENBERG et al. (twelve cases). COMMONWEALTH v. Donald K. TAYLOR (ten cases).
• Decision Date: 16 July 1959
• Court: United States State Supreme Judicial Court of Massachusetts

Page 181

160 N.E.2d 181

339 Mass. 557

COMMONWEALTH v. Joseph M. GREENBERG et al. (twelve cases).

COMMONWEALTH v. Donald K. TAYLOR (ten cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 1, 1958.

Decided July 16, 1959.

Dwight L. Allison, Boston (Theodore S. Bakas, Boston, with him) for the defendant Taylor.

Michael Carchia, Boston, and Stephen C. Struffolino, Methuen, for the defendant Greenberg.

John F. McAuliffe, Asst. Dist. Atty., Boston (George F. Hurley, Gerald F. Muldoon

and John P. White, Boston, with him) for the Commonwealth.

Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.

WILLIAMS, Justice.

The defendants have been found guilty by a jury of the offences with which they were charged in the following described indictments. ¹

Five indictments numbered 70, 71, 72, 73, and 74 in which, with one George J. Maitland, they were charged in seventy counts with the larceny of money from Pilgrim Trust Company on divers days between January 24, 1950, and February 5, 1954. G.L. c. 266, § 30.

Five indictments numbered 75, 76, 77, 78, and 79 in which, with Maitland, they were charged in seventy counts with obtaining, with intent to defraud by false statements in writing respecting the financial condition and the means and ability to pay of Greenberg and Maitland, credit from Pilgrim Trust Company at the same times as the larcenies charged in indictments numbered 70, 71, 72, 73, and 74. G.L. c. 266, § 33.

Three indictments numbered 104, 106, and 108 in which Taylor with Maitland was charged in thirty-five counts with larceny of money from Shore Finance Corporation on divers days between October 6, 1952, and January 18, 1954. G.L. c. 266, § 30.

An indictment numbered 105 in which Taylor with Maitland was charged in twelve counts with larceny of money from Harvard Trust Company on divers days between January 22, 1953, and December 14, 1953. G.L. c. 266, § 30.

An indictment numbered 107 in which Taylor with Maitland was charged in twelve counts with obtaining, with intent to defraud by false statements in writing respecting the financial condition and the means and ability to pay of Maitland, credit from Harvard Trust Company at the same times as the larcenies charged in indictment numbered 105. G.L. c. 266, § 33.

An indictment numbered 109 in which Taylor and Greenberg with Maitland were charged with the larceny of $14,225 from Beverly Trust Company on November 27, 1953.

Four indictments numbered 99, 101, 102, and 103 in which it was charged in seventy counts that Taylor being an officer and employee of Pilgrim Trust Company was unlawfully the beneficiary of and unlawfully received, directly and indirectly, a fee, commission, gift and other consideration, for and in connection with certain business of said trust company on divers days between July 3, 1952, and February 5, 1954. G.L. c. 172, § 16.

An indictment numbered 63 in which Taylor with Maitland was charged with conspiring from January 1, 1951, to March 16, 1954, the date of the indictment, to steal moneys, goods and chattels of persons unknown to them at the time of such conspiracy.

An indictment numbered 80 in which Greenberg and Taylor, with Maitland, were charged with conspiring from November 1, 1949, to April 9, 1954, the date of the indictment, to obtain with intent to defraud credit from Pilgrim Trust Company by false statements in writing respecting the financial condition and the means and ability to pay of Greenberg and Maitland.

Taylor 'having been convicted of more than three separate and distinct larcenies at one sitting of the court as set forth in indictments' numbered 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 104, 105, 106, 107, 108, and 109 and Greenberg 'having been convicted of more than three separate and distinct larcenies at one sitting of this court as set forth in indictments' numbered 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, and 109 each was adjudged to be a common and notorious thief and sentenced to not less than three years nor more than five years in the State prison.

The conspiracy indictments numbered 63 and 80 were ordered to be placed on file. On each of the indictments numbered 101 and 103 Taylor was sentenced to pay a fine of $500. Indictments numbered 99 and 102 were ordered to be placed on file. Each defendant requested that in order to protect his right to appeal sentence be imposed on the indictments which had been ordered placed on file. Thereupon the court imposed concurrent sentences of one year in the house of correction on each of the conspiracy indictments to be served from and after the State prison sentences and on each of the indictments numbered 99 and 102 ordered Taylor to pay a fine of $500.

The cases are before us upon the defendants' appeals under G.L. c. 278, §§ 33A-33G, as amended, accompanied by a summary of the record, a transcript of the evidence, and their assignments of error, and upon a substitute bill of exceptions of Greenberg relating to the disposition of three pleas in abatement filed by him as to the three groups of indictments numbered 70-74, 75-79, and 80.

It appears from this substitute bill of Greenberg that he was arraigned on the indictments against him on April 12, 1954, and pleaded not guilty. He was allowed three weeks 'for filing of special pleas.' On April 30, 1954, he filed these pleas in each of which he alleged that 'the district attorney, or assistant district attorney, present in the grand jury room * * * [practised] acts of guile and intimidation' upon him, he having 'appeared before the grand jury voluntarily, as a witness, in the matter of an inquiry of a particular person or persons, all of which had a tendency to influence the action of the grand jury on other grounds'; and prayed 'that he may be dismissed and discharged of these said indictments.' At a hearing on June 8, 1954, he was allowed one week to file a motion that he be allowed to retract his pleas of not guilty. On June 28, 1954, he filed a motion to be heard on the pleas and be afforded a trial on the merits. This motion was heard on June 29, 1954, at which time Greenberg stated to the court that he did not intend to move to be allowed to retract his pleas of not guilty. The motion for hearing was denied without prejudice. He filed a claim of exceptions to its denial and to the 'failure to make rulings upon' seventeen requests for rulings which had been filed in the clerk's office on June 28 but not 'physically handed' to the court.

These exceptions should be overruled. By his pleas of not guilty the defendant admitted the validity of the indictments and in effect waived matters in abatement. Commonwealth v. Wakelin, 230 Mass. 567, 570, 120 N.E. 209; Lebowitch, petitioner, 235 Mass. 357, 362-363, 126 N.E. 831; Commonwealth v. Walsh, 255 Mass. 317, 319, 151 N.E. 300.

The action of the court in permitting the pleas to be filed did not nullify the defendant's waiver nor exhaust the court's power to deal with the pleas according to law. See Trudel v. Gagne, 328 Mass. 464, 465, 104 N.E.2d 489. The insistence of the defendant upon his pleas of not guilty amounted to an affirmation of his previous waiver and the court was not required to hear him further on abatement. The defendant has not been harmed as on their face the pleas were insufficient. See Commonwealth v. Geagan, Mass., 159 N.E.2d 870. The general assertions of guile and intimidation on the part of the district attorney or his assistant, like general allegations of fraud, did not merit judicial inquiry. Butler v. Directors of Port of Boston, 222 Mass. 5, 8, 109 N.E. 653; Fleming v. Dane, 298 Mass. 216, 218, 10 N.E.2d 85, and cases cited. That Greenberg testified voluntarily at the inquiry by the grand jury did not invalidate the indictments subsequently returned against him. State v. Duncan, 78 Vt. 364, 368, 63 A. 225, 4 L.R.A., N.S., 1144. The requested rulings related to the contention that the court was required to grant a hearing on the merits of the pleas as a matter either of right or of discretion. There was no error in failing to pass upon them.

Taylor seasonably filed motions for particulars. G.L. c. 277, § 40. These were furnished in substantial detail by the Commonwealth. They informed the defendants that the larcenies of money were effected by false pretences through the use of fictitious collateral in the form of false purchase and service orders of departments of the city of Boston and Commonwealth of Massachusetts to Maitland or George J. Maitland Company; and that credit was obtained by written statements regarding the validity of this collateral. The respective parts played by the defendants and Maitland in these larcenies and the obtaining of credit, their respective participation in the conspiracies, and the character of the gratuities received by Taylor were fully set forth. The particulars were adequate to advise the defendants of the nature of the charges and sufficient to enable them to prepare their defences. See Commonwealth v. Hayes, 311 Mass. 21, 24-26, 40 N.E.2d 27, and cases cited.

A motion that other pending indictments against the alleged co-conspirator Maitland be ordered tried with the present indictments was denied. If, as we do not intimate, the judge under G.L. c. 278, § 1, had authority to order cases added to the trial list to which the defendant was not a party and then consolidate them for trial, there was no abuse of discretion in denying the motion. See Commonwealth v. DiStasio, 294 Mass. 273, 279-280, 1 N.E.2d 189; Commonwealth v. Sheppard, 313 Mass. 590, 595, 48 N.E.2d 630.

Taylor claims error in the alleged refusal of the judge, previous to the empanelling of the jury, to examine prospective jurors in accordance with ten proposed questions regarding what they had heard or read of the case and their ability to render a fair verdict. The docket entries contain no references to the filing of any motion and the district attorney has moved...