Com. v. Leonard

• Decision Date: 11 January 1886
• Citation: 4 N.E. 96,140 Mass. 473
• Parties: COMMONWEALTH v. LEONARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

140 Mass. 473

4 N.E. 96

COMMONWEALTH v. LEONARD.

Supreme Judicial Court of Massachusetts.

January 11, 1886

The testimony for the government was that certain old material iron and metals, such as mentioned in the indictment, having been stolen from the Boston & Lowell Railroad Corporation were afterwards, on the twenty-ninth day of August, 1883 found in the shop of the defendant in Cambridge, who was a licensed junk-dealer. James McCarty, a witness for the government, testified that he was in the employ of the Boston & Lowell Railroad Corporation a number of years; that for a long period before the said twenty-ninth day of August, 1883 while in such employ, he had been in the habit of appropriating iron and other materials of the corporation, which were taken from old cars in the repairshop, and selling the same to the defendant; and that the defendant induced him to procure it for him. This witness was indicted in said county for the larceny of said property, forfeited his recognizance, and his sureties have been sued, which suit is now pending. After default and suit he has come into court and pleaded guilty to the indictment, but has never been sentenced. Two police officers, Murray and Moore, testified for the government they went to defendant's junk-shop on said August 29th, and learned from him that he had no book, as required to be kept by junk-dealers. With two other persons, employes of said corporation, they found there a considerable quantity of old iron, among among which was the property described in the third count of the indictment, and the property so described was taken away and restored to said corporation. A small portion of the property thus taken was positively identified as belonging to said corporation, and the remainder resembled property which belonged to it. The two police officers also testified that the defendant, when asked where he obtained the property taken away, replied he bought it of a man on the street, he did not know; that he lived on Third street, and he did not know his name; but he finally said, on being pressed, that his name was McCarty, and that he worked on the Lowell railroad. Against the objection of the defendant, Officer Murray was permitted by the court to testify that, as inspector of junk-shops, which office he then held in May, 1883, he went, according to his duty, to see defendant at his shop in regard to whether he should receive a new license, and then asked him whether he kept a book such as the law requires of junk-dealers, and he said that he had not; that he (Murray) told him he must do so, and if he did not he should report against his receiving a new license; that the defendant then promised to keep a book; and Murray reported in his favor, and he had a new license granted him. The defendant testified and acknowledged he bought the property of McCarty, but said he honestly did so. And it appeared that the prices which he paid for it were the fair market value of the same for junk. Defendant also testified that he had known McCarty by sight for a long while before he bought anything of him; that he saw him frequently pass his premises on his way to work, but he did not know where he was employed; and that he knew he lived near by on Third street. Also that McCarty took him to his house and showed to him there the first lot sold him, telling him, in explanation, he bought it attached to wood as old material, pointing out to him the wood, which was broken and piled up as fire-wood, and saying that he had opportunities of purchasing such old material. He further testified that there was nothing he purchased of McCarty but what junk-men usually deal in and have, and that the property in itself would excite no suspicion, if presented for sale to a dealer in junk. He said he was 62 years old; had lived in Cambridge 24 years, and was engaged in the junk business all that time there, receiving a license each year; that he has a family, and is a real-estate tax-payer. He denied that he said to the officers that he did not know of whom he bought the property, and said that, on the contrary, he told them at once, without hesitation, he bought it of McCarty; that he gave the officers information where McCarty lived; and when McCarty was afterward arrested by these officers he identified him at the police station as the man of whom he bought. Two witnesses, large wholesale dealers in junk in the city of Boston, were produced by the defendant, both of whom testified that the prices paid to McCarty were fair market prices for the material when purchased, and more than such is now worth; that such property is commonly found in junk-shops and dealt in by junk-dealers; and that while the offering of a single spring for sale by a stranger might be suspicious, the offering of a quantity of this material by one known to the dealer would excite no suspicion that it had been dishonestly obtained. None of the property was produced in court by the government, but certain coil-springs and an elliptic spring were shown in court by the defendant, which were junk, and had come from the junk-shop of one of the wholesale dealers mentioned, and which the witnesses for the government in the employ of said railroad admitted were good samples of and in as good condition as the property bought of McCarty. The defendant introduced the testimony of many respectable witnesses, all of whom were old residents of Cambridge, lived and did business very near to defendant, some upon the same street with him, and had known and seen him, and those who knew him, almost daily for many years. Among these was the chief of the state police, aldermen and ex-aldermen, members of the council and legislature. All of these witnesses testified to the uniform good character of the defendant.

The defendant requested the court to make the following rulings to the jury:

"If the jury are not satisfied beyond a reasonable doubt that the accused knew that the goods were stolen, he is entitled to an acquittal. To justify a conviction, it is not sufficient to show that the accused had a general knowledge of the circumstances under which the goods were stolen, unless the jury is also satisfied that he knew that the circumstances were such as constituted larceny. Good character, like all other facts in the case, should be considered by the jury, and if therefrom a reasonable doubt is generated in the mind of the jury as to the guilt of the accused, it is their duty to acquit."

But the court refused to make such rulings, or any of them, and upon the matter of defendant's request for rulings instructed the jury as follows:

"When a man is put on trial, charged with a criminal act, he has a right to put in evidence the reputation which he has from those who know him,--his character; in other words, by way of rebuttal of the inference that he might be likely to commit the act of which he is accused. If a person is charged with any act which implies dishonesty, the party accused has a right to put in his reputation of being an honest man, in order to furnish evidence that the character of the man accused is such that you would not be likely to expect crime to be committed. Character may properly be thrown into the scale to increase any reasonable doubt that the jury might have on the case in question. Of course, character is no excuse,--a good name is no answer against decisive evidence. It is in a case where the evidence is doubtful, and the mind of the jury is in doubt, then the evidence of good character is thrown into the scale in behalf of the man. Of course, if a man should come before a jury, a credible witness,--and say he saw the accused party commit a crime, it would be no answer for that party to say: 'My character has always been good.' It is important, where the evidence to convict is doubtful, that it should be thrown into the scale in his favor; but where the evidence is strong, and his guilt is impressed on the minds of the jury, of course it is not of the slightest consequence. He must know that the goods were stolen, but he don't need to know the hour nor day they were stolen. He must undoubtedly have notice which would put him on his guard,--as knowledge that the goods were acquired and turned over to him by a person not taking them by mistake, not by right, but taking them as thieves take them; that is, for the purpose of defrauding the railroad, and cheating them out of their property."

Defendant's counsel here suggested, "by larceny," and the court then further instructed:

"By the taking and carrying away of property, it is the fraudulent taking away of the property of another for the purpose of converting it to the taker's use to deprive the owner of it. These goods must have been taken that way, and were stolen goods. They must have been taken by McCarty as thieves take them, not by mistake or accident, or by taking from those who had no right to give, but taking when he knew that he had no right to take them."

The jury found the defendant guilty on the third count, and not guilty on the first and second counts of the indictment.

COUNSEL

Chas. J. McIntire and George A. Perkins, for defendant.

The motion to quash should have been allowed, for the first count of the indictment alleges that certain articles, the goods and chattels of the Boston & Lowell Railroad Corporation were, on the first day of July, 1883, stolen, and afterwards were feloniously received by the defendant. The second count alleges that certain articles differently described were, on the first day of August, 1883, stolen and feloniously received by the defendant. The third count, upon which defendant was convicted, alleges that certain articles described differently from those in either of the first two counts were, on the first...