Com. v. Iannello

• Decision Date: 10 July 1962
• Parties: COMMONWEALTH v. Charles IANNELLO et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 364

184 N.E.2d 364

344 Mass. 723

COMMONWEALTH v. Charles IANNELLO et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 2, 1962.

Decided July 10, 1962.

Thomas E. Dwyer, Boston (Joseph Graglia, Boston with him), for defendants.

Joseph T. Doyle, Asst. Atty. Gen. (Theodore R. Stanley, Asst. Atty. Gen., with him), for the Commonwealth.

Before WILKINS, C. J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ.

KIRK, Justice.

The defendants, Charles and Dorothy Iannello, husband and wife, were found guilty by a jury on an indictment (numbered 767) which was one of fifteen indictments charging them as codefendants with stealing from the Commonwealth of Massachusetts. The case, made subject to G.L. c. 278, §§ 33A-33G, comes to us upon appeal accompanied by five assignments of error. ¹ It is contended by the defendants that the judge committed error in: (1) allowing the Commonwealth's motion that all indictments be consolidated for trial; (2) denying the defendants' motion for a severance and for a separate trial on each indictment; (3) denying the defendants' motion to quash the indictment; (4) denying the defendants' motions for directed verdicts and (5) denying the defendants' motion to set aside the verdicts of guilty.

We first consider assignment 3 which states that the judge was in error in denying the defendants' motion to quash the indictment. The motion was based on the ground that the indictment, together with the bill of particulars filed by the Commonwealth, did not state a crime cognizable under the laws of our Commonwealth. The indictment ² was in statutory form. The judge, at the defendants' request, ordered the Commonwealth to furnish particulars including the following: '1. The exact time when the offense is alleged to have been committed.' '3. The manner and means in and by which the said offense is alleged to have been committed.' '5. The exact nature as to the crime which they are alleged to have committed.' The particulars filed in answer thereto were, respectively, as follows: '1. That a written proposal dated March 13, 1958, was submitted by the defendants to reconstruct approximately 1520 square feet of damaged concrete walks from 137 to approximately 145 Gallivan Boulevard, in the Dorchester District of Boston; that an invoice dated June 5, 1958, was submitted in connection with said proposal; that a draft dated June 23, 1958, was issued by the Commonwealth in connection with said invoice; and that said draft bears a bank stamp dated June 25, 1958.' '3. Proposal by the defendants to reconstruct approximately 1520 square feet of damaged concrete walks from 137 to approximately 145 Gallivan Boulevard, in the Dorchester District of Boston, and their failure to do so.' '5. Larceny by false pretenses.'

The gist of the defendants' contention as to assignment 3 is that the sufficiency of the indictment may be measured by the particulars which purport to state the nature of the crime and the manner and means of its commission and that, thus measured, the crime of larceny by false pretences is not alleged.

This contention cannot prevail. The language of the indictment is that prescribed by G.L. c. 277, § 41, and G.L. c. 277, § 79. By both sections the language here used is declared sufficient. ³ Commonwealth v. Farmer, 218 Mass. 507, 509, 106 N.E. 150. See Commonwealth v. Galvin, 323 Mass. 205, 210-211, 80 N.E.2d 825. The purpose and effect of specifications in a bill of particulars have been frequently stated, although in somewhat varying language. The purpose is to give a defendant reasonable knowledge of the nature and character of the crime charged (Commonwealth v. Hayes, 311 Mass. 21, 24-25, 40 N.E.2d 27; Commonwealth v. Ries, 337 Mass. 565, 580-581, 150 N.E.2d 527), and the effect, when filed, is to bind and restrict the Commonwealth as to the scope of the indictment and to the proof to be offered in support of it. Commonwealth v. Gedzium, 259 Mass. 453, 457-458, 156 N.E. 890. Commonwealth v. Snyder, 282 Mass. 401, 412, 185 N.E. 376. Commonwealth v. Albert, 307 Mass. 239, 243, 29 N.E.2d 817. The specifications in a bill of particulars furnished by the Commonwealth in a criminal case do not, however, have the effect of derogating from an indictment which sufficiently avers a crime cognizable under our law. To yield to the defendants' contention would require us to disregard the plain language of the statute and would again expose the prosecution to the pitfalls of pleading which these sections, authorizing the short form indictment, were designed to eliminate. There was no error in the denial of the defendants' motion to quash.

We next consider assignments 1 and 2, relating to the consolidation of the indictments for trial. In all, twenty indictments were originally involved. In nineteen of these Iannello ⁴ was charged with larceny. In fifteen of the nineteen his wife was a codefendant. In the remaining four, his married daughter was a codefendant. The twentieth indictment charged Iannello and his wife and others with conspiracy to commit larceny. It is clear that there was an issue of fact, common to all of these indictments, which was presented for determination, namely, whether there was a failure by the defendants to perform sidewalk repair work in the metropolitan area between 1957 and 1960 which the defendant Iannello certified as having been done and for which payment had been made by the Commonwealth. Furthermore, the alleged victim of the larceny in all of the indictments was the same (the Commonwealth of Massachusetts). It is firmly established that in these circumstances the defendants could not insist as of right that they be tried separately on each indictment charging larceny. The determination in such a case as to whether the defendants' or the Commonwealth's substantial rights will be prejudiced by consolidation or severance for trial rests in the sound discretion of the judge. In Commonwealth v. Mullen, 150 Mass. 394, 397, 23 N.E. 51, 52, this court, citing earlier cases, said: 'It has long been the practice in this commonwealth to charge a defendant with various and distinct felonies in different counts of the same indictment, when they are of the same general nature, supported by similar evidence, and where the punishment to be awarded [are] of the same character. It is deemed that a defendant is sufficiently protected by the power which exists in the court to order separate trials upon the different counts, where there is, in its opinion, danger that a prisoner may be embrassed in his defense. It is well settled that this rule has not been altered by the Statute of 1861, c. 181. Pub. St. c. 213, § 18.' ⁵ This principle has been reiterated and applied in numerous cases and in various situations including, as here, the trial together of several indictments charging different crimes arising out of a single chain of circumstances. The following are examples. Commonwealth v. Rosenthal, 211 Mass. 50, 54, 97 N.E. 609, 47 L.R.A.,N.S., 955. Commonwealth v. Slavski, 245 Mass. 405, 411-412, 140 N.E. 465, 29 A.L.R. 281. Commonwealth v. D'Amico, 254 Mass. 512, 514, 150 N.E.321. Commonwealth v. Gallo, 275 Mass. 320, 324, 175 N.E. 718, 79 A.L.R. 1380. Commonwealth v. DiStasio, 294 Mass. 273, 279, 1 N.E.2d 189. Commonwealth v. Sheppard, 313 Mass. 590, 595, 48 N.E.2d 630. Cf. Commonwealth v. Ries, 337 Mass. 565, 570, 150 N.E.2d 527, and cases cited. We have reviewed the contentions made by the Commonwealth and the defendants at the hearing on the motions to consolidate and to sever and find no basis for ruling that the order of the judge was an abuse of discretion.

The remaining assignments of error, 4 and 5, relate to the denial of the defendants' motions for directed verdicts and to the denial of their motion that the verdicts be set aside because they were against the weight of the evidence. Consideration of these assignments of error requires that we summarize from the more than one thousand pages of the transcript the evidence relating to the substantive offences.

The Metropolitan District Commission (M.D.C.) was charged by St.1956, c. 581, with the maintenance of certain public sidewalks in the city of Boston. For this purpose the M.D.C. hired private contractors. Contracts covering sidewalk repair work for which less than $1,000 was to be paid could be and were awarded by the M.D.C. without competitive bidding. It was this type of contract which was involved at the trial.

During the time covered by the transactions in issue the M.D.C. and the State disbursing agencies observed the following procedure. When complaints were received that sidewalks at certain locations were in need of repair, one Fink, Chief Park Engineer of the M.D.C., designated his first assistant, one Sampson, ⁶ to cause an investigation to be made. If upon investigation the need for repair appeared, Sampson notified a contractor and asked him to submit a proposal for the work. The contractor then submitted a letter of proposal to Sampson. If Sampson recommended the proposal, it was approved by Fink and by the Commissioner of the M.D.C. A department purchase order was then sent to the contractor authorizing him to perform the work described in the letter of proposal. When the contractor completed the work, he submitted, as part of a single sheet printed form referred to as 'standard invoice,' prescribed by the Comptroller's Bureau of the Commonwealth (G.L. c. 7, §§ 13, 17), a voucher to the M.D.C. requesting payment for the work. He was required to submit an original and three copies of the standard invoice to the State agency (here the M.D.C.) for which the services were rendered. The standard invoice, in its upper third part, directed that the contractor by signature in ink there 'certify that the goods were shipped or the services rendered as set forth below.' Below, in the middle third of the invoice a space was provided for a description of the goods delivered or services...