Com. v. Ries

Decision Date14 May 1958
Citation150 N.E.2d 527,337 Mass. 565
PartiesCOMMONWEALTH v. Marshall A. RIES (and thirteen companion cases against the same defendant).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Robert W. Meserve, Boston, and Benjamin H. Lacy, South Natick, for defendant.

John F. McAuliffe, Asst. Dist. Atty., and Gerald F. Muldoon, Boston, for the Commonwealth.

Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and CUTTER, JJ.

RONAN, Justice.

These are appeals under G.L. c. 278, §§ 33A-33G, as amended, following convictions for larceny, for taking gratuities as a bank officer in connection with bank business, and for a conspiracy to steal.

A general preliminary statement may be summarized from the evidence as follows: Ries for many years was a vice-president and a lending officer of a Massachusetts trust company located in Boston where he became acquainted with one Maitland in December, 1948. Soon thereafter Ries began to lend money of the trust company to Maitland upon unsecured loans. Early in January, 1954, Maitland had repaid all his loans from the trust company. In the spring of 1952, Ries interested one Kalman (or one of the seven corporations which he controlled, hereinafter referred to as Kalman) in lending money to Maitland who thereafter borrowed $1,166,950 on short term ninety day notes at the rate of $50 per $1,000 all of which purported to be secured by city purchasing slips, 1 every one of which was fictitious and worthless. When the Kalman transactions came to an end in the middle of February, 1954, Kalman was owed $243,800 which has never been repaid.

The defendant was tried on fourteen separate indictments consolidated at a single trial. 2 In eight of them he was charged with larceny of more than $100 by obtaining money under false pretences from different corporations controlled by Kalman and from Kalman himself. In five indictments there were alleged violations of G.L. c. 172, § 16, each of which charged Ries as a trust company officer with receiving gratuities in connection with bank business. In one indictment the defendant was charged jointly with Maitland and one Wren with conspiracy to steal. On this indictment, Ries was tried only with Wren. Maitland was also charged separately with similar larcenies from Kalman. It does not appear that Maitland has ever been put to trial on any indictment, but he was used as a witness for the prosecution. Ries was convicted on all of these indictments with the exception of certain counts which were waived by the Commonwealth and was duly sentenced but the sentences have been suspended to await the decision of this court. On the conspiracy indictment, a verdict of not guilty was directed for Wren.

The defendant has set forth numerous assignments of error which he briefed and argued. We shall follow that order.

1. The third, fourth and fifth assignments of error are to the refusal to grant certain pre-trial motions. The first group of these motions sought a change of venue. Kalman committed suicide on the morning of the day originally set for trial. The newspapers, as shown by the clippings introduced at the hearing, gave considerable publicity to the event both as to the space allotted to it and as to the contents of the articles, especially the relation of Kalman to the impending trial, and prophesied what result his death would have. Some of the articles carried large headlines and were embellished with pictures of Kalman, his secretary, and his attorney. Some of the articles contained a reference to a settlement made between Kalman and the trust company on account of the loss incurred arising from the bogus city purchasing slips.

Verification of the facts in a criminal prosecution in the county where they happened has been said to be one of the greatest securities of the life, liberty, and property of the citizen. Art. 13 of the Declaration of Rights of the Constitution of Massachusetts. That rule has been established by history and experience. The instant trial was to be held in Suffolk County unless the judge was satisfied in his judgment that a fair and impartial trial would not likely result if held there. That the judge was fully aware of his duty was apparent from his remarks from the bench during the hearing of the motions and was more evident during his change when he instructed the jury, who had been segregated more than two weeks, that they should pay no attention to what they may have read or heard outside of the court room but that their decision must be based upon what occurred in the court room. There was no error in the denial of the motions for a change of venue. Commonwealth v. Leventhal, 236 Mass. 516, 524, 128 N.E. 864; Commonwealth v. Millen, 289 Mass. 441, 463-464, 194 N.E. 463; Commonwealth v. Sheppard, 313 Mass. 590, 594, 48 N.E.2d 630; Commonwealth v. Bonomi, 335 Mass. 327, 333, 140 N.E.2d 140.

Another motion requested that the indictment charging conspiracy to steal should be tried separately from the other indictments or in the alternative that Ries be tried separately from Maitland and Wren, also named as codefendants in that indictment.

Wren did not agree to waive a jury trial on the indictment charging conspiracy with Ries and Maitland. Maitland, who appears not to be represented by counsel, took no part at the hearing upon this motion but the district attorney opposed its allowance. After a hearing, the judge denied the motion. The statute provides that a defendant in a noncapital case may waive a jury trial 'but not, however, unless all the defendants, if there are two or more charged with offenses growing out of the same single chain of circumstances or events whether prosecuted under the same or different indictments or complaints shall have exercised such election, before a jury has been impanelled to try any of the defendants * * *.' G.L. c. 263, § 6, as amended by St.1933, c. 246, § 1.

The waiver of a jury trial was the only matter embraced in this motion that is regulated by statute. G.L. c. 263, § 6, as amended. All the matters embraced in the decision rested in the sound judicial discretion of the judge. There was no error. Commonwealth v. Slavski, 245 Mass. 405, 411-413, 140 N.E. 465, 29 A.L.R. 281; Commonwealth v. D'Amico, 254 Mass. 512, 514, 150 N.E. 321; Commonwealth v. Sacco, 255 Mass. 369, 413, 151 N.E. 839; Commonwealth v. Snyder, 282 Mass. 401, 410, 185 N.E. 376; Commonwealth v. Millen, 289 Mass. 441, 459-460, 194 N.E. 463.

The third group of motions sought a joint trial of Maitland with the defendant on the conspiracy indictment which we have already discussed and also upon the larceny indictments in which each was separately charged with offences based upon the same transactions. Whether there should be joint or separate trials rested in the sound discretion of the judge. We see no question of law involved in the denial of these motions. Commonwealth v. DiStasio, 294 Mass. 273, 279, 1 N.E.2d 189; Commonwealth v. Barker, 311 Mass. 82, 89, 40 N.E.2d 265; Commonwealth v. Sheppard, 313 Mass. 590, 595, 48 N.E.2d 630; Commonwealth v. Blondin, 324 Mass. 564, 573, 87 N.E.2d 455.

2. There was no error in the refusal to direct verdicts for the defendant on the larceny indictments upon the ground of insufficient evidence as set forth in assignment 18 nor upon the ground of variance as set forth in assignment 23.

A jury could find the facts herein recited under this heading. After Maitland had been borrowing from the trust company for more than three years by unsecured loans, he told Ries in March, 1952, that he wanted larger loans and asked him if he knew any one who would be interested. He told Ries he wanted $100,000. Ries asked what he had for security and Maitland said that he had the city of Boston contract forms. Maitland also said, 'They look good and they have never been questioned anywhere and I don't see any reason why it couldn't be used here as long as they are not checked up.' A few days later Ries met Kalman at the trust company and then introduced him to Maitland. Previously Maitland agreed that if he got the loans for five per cent Ries would be 'cut * * * in at two.' Kalman was a customer of the trust company and was a business acquaintance of the defendant for over ten years. Ries had in the past referred to Kalman four or five matters which the trust company could not itself handle. The defendant according to his own testimony had served with Kalman as a financial confidant and Kalman depended upon Ries to guide him in his transactions with Maitland. Ries introduced Kalman to Maitland and left them temporarily. Maitland agreed with Kalman to pay five per cent interest for ninety day loans and insisted that there should not be any checkup of the collateral. Later, and before any loan from Kalman, Maitland asked Ries if he was sure that there would be no checkup. Ries told him that Kalman 'will not check up on it. You can be sure of that.' Maitland replied, 'You know, if there is a checkup on this after we take one of these loans, we will both be in trouble.' Ries told him not to worry, there would be no checkup. Maitland agreed to pay Kalman five per cent interest and agreed to pay two per cent of each loan to Ries. There were about one hundred seventy-five transactions with Kalman and Ries received approximately $25,000.

The procedure was for Maitland to tell Ries how much money he wanted. Ries would telephone Kalman for the amount. Maitland would bring in a filled in city slip running to G. J. Maitland Co. Maitland would sign the assignment and the note that Ries made out. The assignment was made out by Ries upon a trust company blank by inserting the name of the lender as assignee. Ries also made out the note which Maitland signed payable to Kalman or whichever corporation was the lender. The collateral and assignment would be turned over to Kalman for his check or that of his lending corporation. Maitland's note would be turned...

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