Com. v. Obshatkin
| Decision Date | 28 February 1974 |
| Citation | 307 N.E.2d 341,2 Mass.App.Ct. 1 |
| Parties | COMMONWEALTH v. Alan B. OBSHATKIN. |
| Court | Appeals Court of Massachusetts |
Anthony R. Mastromarino, Taunton, for defendant.
Louis J. Ostric, Asst. Dist. Atty., for the Commonwealth.
Before HALE, C.J., and ROSE, GOODMAN, GRANT and ARMSTRONG, JJ.
The defendant was tried, convicted, and sentenced in the Superior Court in Bristol County on a complaint under G.L. c. 266, § 60, charging him with receiving stolen goods in Bristol County. His bill of exceptions alleges error in the denial of his motion for a directed verdict. The defendant contends that the motion should have been allowed because (1) the evidence was insufficient to warrant a finding of guilty, (2) the Commonwealth failed to prove that the defendant knew that the goods were stolen, and (3) the Commonwealth failed to prove that the crime was committed in Massachusetts.
From the evidence the jury could have found that on September 5, 1972, one DeAngelis approached the defendant at their place of employment in Warwick, Rhode Island, and expressed an interest in purchasing from him two particular types of bicycles. DeAngelis testified that the defendant had told him that his name was Allan C. Winston had that he (DeAngelis) was aware that the defendant had sold bicycles to fellow employees. Early the next morning one Covington reported the theft of two bicycles from his residence in Taunton. That evening the defendant delivered the two stolen bicycles to DeAngelis at Warwick. They were of the type previously described by Covington. A total price of $35 was agreed upon, and DeAngelis offered to pay the defendant by check. The defendant declined to accept payment by that means and insisted upon cash. DeAngelis took the bicycles home with him. The next day he paid the defendant $20, and the day after that he paid the balance of $15.
Our opinion is that the evidence, although circumstantial, was sufficient to permit the case to go to the jury. Commonwealth v. O'Brien, 305 Mass. 393, 400--401, 26 N.E.2d 235, 239 (1940), quoting Commonwealth v. Alba, 271 Mass. 333, 337, 171 N.E. 458 (1930).
It is settled that possession of recently stolen property puts the burden of explanation on one charged with receiving stolen goods, knowing them to have been stolen. Commonwealth v. Kelley, 333 Mass. 191, 193--194, 129 N.E.2d 900 (1955); Commonwealth v. Ryan, 355 Mass. 768, 773, 247 N.E.2d 564 (1969); Wigmore on Evidence (3d ed.) § 152. Here the defendant offered no testimony at all on that point. Guilty knowledge can be proved by circumstantial evidence. See Commonwealth v. Boris, 317 Mass. 309, 314--315, 58 N.E.2d 8 (1944). 'Although there was no direct testimony that the defendant had knowledge that the property was stolen, it was nevertheless a question of fact for the jury to decide upon all the evidence, including the defendant's possession of the stolen property and the inferences to be drawn from this circumstance, whether the defendant received the goods, knowing them to be stolen.' Commonwealth v. Peopcik, 251 Mass. 369, 371, 146 N.E. 661, 662 (1925).
Similarly, while there was no direct testimony in the instant case that the defendant actually received the stolen property within the Commonwealth, the jury could have found from the evidence that the defenant lived in Taunton, that the goods were stolen in Taunton, and that the defendant possessed the goods in nearby Warwick shortly thereafter. From those circumstances the jury were warranted in inferring that the receipt did take place in Massachusetts. While it is true that 'possession out of the commonwealth of goods stolen in the commonwealth would not of itself warrant a conviction for receiving them . . . here' (Commonwealth v. Phelps, 192 Mass. 591, 593--594, 78 N.E. 741, 742 (1906); emphasis supplied), we think that there was sufficient additional evidence presented here to warrant the defendant's conviction. This is not a case in which the crime, or part of the crime, was shown to have been initiated beyond the boundaries of the Commonwealth (see, e.g., Commonwealth v. Macloon, 101 Mass. 1 (1869); Commonwealth v. Lanoue, 326 Mass. 559, 95 N.E.2d 925 (1950); COMMONWEALTH V. CARROLL, MASS. (1971) 276 N.E.2D...
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