Com. v. Louis Const. Co.

• Citation: 180 N.E.2d 83,343 Mass. 600
• Parties: COMMONWEALTH v. LOUIS CONSTRUCTION CO., Inc. (four cases). COMMONWEALTH v. Louis RECINE (three cases).
• Decision Date: 12 February 1962
• Court: United States State Supreme Judicial Court of Massachusetts

Page 83

180 N.E.2d 83

343 Mass. 600

COMMONWEALTH v. LOUIS CONSTRUCTION CO., Inc. (four cases).

COMMONWEALTH v. Louis RECINE (three cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 6, 1961.

Decided Feb. 12, 1962.

Jackson J. Holtz, Boston (L. Johnson Callas, 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 WILLIAMS, WHITTEMORE, CUTTER, and SPIEGEL, JJ.

WILLIAMS, Justice.

The corporate defendant Louis Construction Co., Inc., has been found guilty on four indictments numbered 786, 787, 788, and 793 of 1961, each charging larceny from the Commonwealth of Massachusetts. The defendant Louis Recine, president and treasurer of the corporate defendant, has been found guilty on two indictments numbered 789 and 790 of 1961, charging the same larcenies from the Commonwealth set forth respectively in indictments 793 and 786 against the corporation. Louis Recine has also been found guilty on an indictment numbered 791 charging him with perjury in a hearing before an investigating committee of the Massachuetts Senate. The cases are before us, after the imposition of sentences, upon the appeals of each defendant accompanied by assignments of error, a summary of the record, and a transcript of the evidence pursuant to G.L. c. 278, §§ 33A-33G, as amended. The indictments were tried together before a jury.

There was evidence, substantially undisputed, as follows. The metropolitan district commission maintained an art center on Soldiers Field Road in Brighton. In September, 1959, the defendant Louis Construction Co., Inc. (Louis), of which the defendant Louis Recine was sole stockholder, was engaged in a landscaping project for the commission in connection with the art center. The commission, because of a threatened hurricane, employed it on a cost plus 16% basis to dismantle the center's 'summer tent theatre roof,' hereinafter referred to as 'the tent,' and store it until the next season in May, 1960. It was an emergency job requiring the speedy assembling of riggers and laborers. Louis took down the tent in two days (September 29-October 1) and stored it with a firm called Robbins & Burke, Inc., in Cambridge. On or about October 12, it submitted bills or vouchers to the commission for its costs. These bills included charges for labor, insurance, and storage. The bills were annexed to a so called 'standard invoice' by the commission and forwarded by it to the Comptroller for the Commonwealth. Additional supporting vouchers were required by him and certain charges were disapproved. The invoice was finally approved early in June, 1960, after a conference of Recine with the deputy comptroller and the agent for the commission. It amounted to $7,173.45 and with the addition of 16% totaled $8,321.20. This sum was paid to Louis by check of the Treasurer of the Commonwealth dated June 30, 1960.

On July 25, the Massachusetts Senate voted an order that a special committee be appointed for the purpose of making an investigation and study of the administration of the metropolitan district commission, 'with particular reference to the awarding of contracts, the purchase of supplies and materials and the hiring of labor.' Recine was called as a witness and testified under oath on September 15. He was asked if he had the tent stored with a friend of his at Boxboro and answered 'yes.'

In December, 1960, the grand jury for Suffolk County returned the indictments on which the defendants have been convicted.

Among the supporting bills supplied by Louis and annexed to the 'standard invoice' were (1) a bill of Geo. T. Hoyt Company in the sum of $112 for labor; (2) four items in a bill of Louis totaling $124.55 for the labor of Henry Donavan and John Campbell; (3) a bill of John C. McDonald and Co. in the sum of $705 for the premium for fire insurance on the tent; and (4) a bill purporting to be that of Paino-LaCava Contractors, Inc., in the sum of $600 for storage of the tent. These charges and the resulting payment by the Commonwealth were the bases of the four larceny indictments against Louis and the two against Recine.

There was evidence that the Hoyt bill (1) was for the labor of two men for twenty-eight hours at $4 an hour. It later appeared that these two men were Donavan and Campbell who were listed in the bill of Louis (2) for labor as having been paid $62.28 and $62.27, respectively. It is conceded that the Commonwealth paid twice for the labor of these men, once by the payment of the Hoyt bill and again by the payment of the items for labor in the Louis bill. The overpayments were the subject of indictments 787 and 788 against Louis in which it was charged with larceny of less than $100.

The McDonald bill for insurance (3) was dated December 1, 1959. Louis had several policies placed through that agency and on June 8, 1960, McDonald wrote to Louis notifying it that by reason of an adjustment of debits and credits in its insurance account the premium charged for the tent insurance should have been $604.04. The commission was not advised of the error in the premium as billed. Louis and Recine were each charged with larceny of $100.96 in indictment 786 against Louis and 790 against Recine, that being the difference between $705 which the Commonwealth paid on June 30 and the corrected bill of June 8.

The amount of $600 paid by the Commonwealth for storage of the tent in payment of the bill of Paino-LaCava Contractors, Inc. (4) annexed to the standard invoice was the subject of indictment 793 against Louis and indictment 789 against Recine. The tent in fact was not stored with Paino-LaCava but with Robbins & Burke, Inc., in Cambridge who were paid $600 by Louis for the storage. It did not appear how a bill purporting to be from Paino-LaCava came to be annexed to the standard invoice but the Commonwealth only paid Louis the amount which it had actually paid Robbins & Burke for storage.

As to each indictment, the respective defendants assigned as error the denial of a motion for a directed verdict for the defendant. To constitute the crime of larceny by false pretences (G.L. c. 266, § 30), it must appear that there was a false statement of fact known or believed by the defendant to be false made with the intent that the person to whom it was made should rely upon its truth and that such person did rely upon it as true and parted with personal property as a result of such reliance. Commonwealth v. Green, 326 Mass. 344, 348, 94 N.E.2d 260, and cases cited; Commonwealth v. Greenberg, 339 Mass. 557, 574-575, 160 N.E.2d 181; Commonwealth v. Barrasso, Mass., 175 N.E.2d 251. ¹ The pretence may be made by implication as well as by verbal declaration, Commonwealth v. Drew, 19 Pick. 179, 185-186; Commonwealth v. Morrison, 252 Mass. 116, 122, 147 N.E. 588, G.L. c. 277, § 39; and the presentation of a bill for labor or materials may be found to be an implied representation that the charges are correct. Commonwealth v. Mulrey, 170 Mass. 103, 105-106, 49 N.E. 91; Commonwealth v. Anthony, 306 Mass. 470, 474-475, 28 N.E.2d 542.

The bill for labor presented to the commission by Louis could be found to be a misrepresentation that Louis had paid or was obligated to pay Donavan and Campbell the respective amounts listed in its bill. The bill of McDonald for insurance in the amount of $705 was a correct statement of the premium charge when filed with the commission in December, 1959. If fraud could be found, it was from...