Com. v. Meserve
| Decision Date | 26 May 1891 |
| Parties | COMMONWEALTH v. MESERVE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A.E. Pillsbury, Atty. Gen., and C.N. Harris, Second Asst. Atty. Gen., for the Commonwealth.
Edward Avery and George R. Swasey, for defendants.
The defendants were tried on four counts,--the first, third fourth, and fifth. Meserve was convicted on the third and fifth counts, and Foye on the fifth only. The objections urged are to the validity of the indictment, to the evidence and to the instructions of the judge. The motion to quash the third count rests on the ground that it is uncertain and vague, and that the defendants could not tell from it whether they were to be tried for a conspiracy to obtain goods by making an unauthorized contract for goods and labor, and also by means of false pretenses, or whether they were to be tried for a conspiracy to obtain goods by means of a pretended contract for goods and labor, which said contract was to be obtained by false pretenses. It appears to be sufficiently plain that the count charges a conspiracy to obtain goods under color of a contract between Kennedy and the corporation, in which Kennedy should pretend to be Brown. The name of Brown was to be pretended or assumed by Kennedy to be his own, and various other pretenses were to be made in reference to the supposed Brown. The count is sufficient. Com. v. Walker, 108 Mass. 309. The objection to the fifth count is substantially similar. Numerous objections were taken to the admission or exclusion of evidence, only a part of which are now insisted on.
The defendants contend that a question to the witness Amanda A. Kennedy was leading. The objection was not put on that ground at the trial, and, if it had been, it was within the discretion of the presiding judge to allow it. Green v. Gould, 3 Allen, 465; York v. Pease, 2 Gray, 282. It was competent to show that Kennedy, alias Brown, was married, shortly before the conspiracy charged, under the name of Kennedy, and that he usually went under that name, or the name of St. Clair; and also that his wife, while living with him shortly before the time of the alleged conspiracy, went under the name of Mrs. St. Clair. All this would have some tendency to show that the assumption of the name of Brown was a mere pretense, and that the agreement that he should assume that name for the purpose of obtaining goods on credit was a conspiracy to cheat.
The evidence of Meserve's conversation as to an attempt to get a horse in Dublin, N.H., was given in connection with a conversation about a plan for Meserve and Kennedy to go to New Hampshire to get some brick by cheating somebody there. This testimony was in support of the first count, and had no relation to the third or fifth count, on which alone a conviction was had. The jury having acquitted the defendants on the first count, the admission of this evidence, whether right or wrong, is now immaterial.
The judge might properly hold that the written documents testified to by Mrs. Kennedy were sufficiently identified to be laid before the jury, although she was unable to read. The mere fact that a witness cannot read writing does not necessarily render him incompetent to testify to the identity of a written paper. He still has the size, form, color, and general appearance of the paper, the color of the ink, and the size and general characteristics or appearance of the writing, to go by. For example, one might be allowed to testify to the identity of a paper written in Greek, Hebrew, Sanscrit, or Egyptian hieroglyphics, although unable to read a word of either language. The weight of the testimony would, of course, be for the jury. The testimony of the witness Googin, which was excepted to, was offered under a misapprehension as to what her testimony would be, and this was stated as soon as she had answered the questions. The testimony was not injurious in its nature, and there is no reason to suppose that it prejudiced the defendant Meserve.
The witness Reed was asked, in cross-examination, whether his action with reference to foreclosure was influenced by an interview with Mr. Pratt. This action with reference to foreclosure and the interview referred to were several months after the date of the conspiracy charged in the indictment, and the question might properly be excluded as immaterial. The evidence that the lumber sent to Newton Highlands was marked "George Brown" had a tendency to show that Kennedy was then assuming the name of Brown, and that Foye was cognizant of it. It bore directly upon the charge against Foye, and was competent for this purpose, although it may not have borne upon the charge against Meserve. Moreover, this testimony appears to have had relation only to the first count, upon which the defendants were acquitted. The question to the witness Carpenter, "What talk did you have with him?"--that is, with Brown,--was properly allowed. There had been sufficient evidence of a conspiracy between Meserve and Kennedy, alias Brown, to warrant the judge in admitting declarations by the latter. No objection was taken to any particular part of the answer, on the ground that it related to matters outside of the charges in the indictment.
The witness Stark was asked, on cross-examination, for certain particulars as to the purchase of the Porter lot, so called, and of the building contract for that lot. These particulars were properly excluded as immaterial. That purchase was several months before the transactions which are charged in the indictment. The fact that there was no attempt by Meserve to defraud in reference to that purchase and that building contract, if conceded, would be unimportant; if not conceded, the admission of the evidence would raise an issue of itself traversable and foreign to those on trial. Moreover, it does not appear that it was urged against either of the defendants that there was an overvaluation in the original purchase of the Reed lot by Meserve from Reed. There was no occasion to prove affirmatively that the price paid was reasonable.
The questions to the residents of Exeter were competent. One principal element in the alleged conspiracy being that Kennedy should assume to be George Brown, a man of wealth residing in Exeter, and then or recently an owner of real estate there, it was competent to show by the witnesses that they knew of no such man. The witnesses testified to a general acquaintance with the inhabitants and owners of real estate in that town. It was not necessary that each witness should be able to state absolutely that he knew every resident. The witness Belknap testified that he was an old resident of the town, the registrar of deeds, the town-clerk, having custody of the town records and assessor's books, and that he was familiar with them; that he was also a real-estate agent and conveyancer, and had searched the records a great deal. He might properly be allowed to testify that there was no such real-estate owner in Exeter as George Brown; that is, no person of that description. The point was that no man of that name and description lived there. The question of his means was held by the court to be immaterial. The only practicable way in practice to prove that no deed appears of record is to show that an examination of the records discloses none. The court and jury cannot look through the records for themselves. The evidence of the witness might not be entitled to so much weight as if he had made special search with reference to testifying; but his general statement, founded not only upon his familiarity with the records, but upon his knowledge of the people and of the land of the town, might properly be received. The authorities cited to show that facts which appear of record must be proved by the records or by copies thereof are not applicable to show that oral testimony is inadmissible to show that a particular fact does not appear of record. The statement of Mrs. Kennedy, alias Brown, to Mrs. Foye, that "Tom will fix him," was properly excluded. We see no ground on which it was material or important, it having been said in the absence of the person referred to. It would have no tendency to contradict him or affect his testimony. The price that Porter was willing to accept for building the house on the Reed lot was properly excluded; or, if material in any aspect of the case, it could only be with reference to counts upon which no conviction was had. In the third and fifth counts there was no...
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