Com. v. Ross

• Decision Date: 18 June 1959
• Citation: 339 Mass. 428,159 N.E.2d 330
• Parties: COMMONWEALTH v. Joseph W. ROSS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 330

159 N.E.2d 330

339 Mass. 428

COMMONWEALTH v. Joseph W. ROSS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 4, 1959.

Decided June 18, 1959.

James D. St. Clair and Blair L. Perry, Boston, for defendant.

Angelo Morello, Asst. Dist. Atty., Boston, for the Commonwealth.

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and WHITTEMORE, JJ.

WHITTEMORE, Justice.

The defendant was tried under two indictments, one for armed and masked robbery on September 17, 1956, and the other for knowingly receiving stolen money on that date. The jury found the defendant guilty of robbery and not guilty of receiving. The defendant's exceptions are stated in the opinion.

The evidence permitted the jury to find as follows: On September 17, 1956, at about 1 p. m. three armed and masked men stole $9,468.06 from a banking office in Boston. On September 22, a police officer with F.B.I. agents questioned the defendant at his home in the Roslindale section of Boston, and, behind a sliding door in the headboard of the defendant's bed, found $246 in bills, including 23 $2 bills, 7 of which had been included in a decoy package which had been handed to the robbers by the tellers.

The defendant, according to police testimony, told inconsistent stories to account for the money; it was his, part of it belonged to his wife's cousin, it was his; he had not worked for six years and he obtained his money in gambling; he would not say where or from whom. He told conflicting stories of his meetings with one Goss whom the police told him they suspected of involvement along with the defendant and one Matheson; he first said he had not seen Goss for six months; later, that he last saw him on September 15; later, that Goss left his home on September 18; that Goss had no visitors; later, that Matheson and one Joyce called on Goss on several occasions including the Wednesday prior to the bank robbery. The defendant said he would tell everything if they would allow his wife to leave the police station. When she had left, he said he had told more than he should have and would not say more. He said that on the evening of September 17, Goss gave the defendant $100 in five and twenty dollar bills and gave one dollar bills to each of the defendant's children. When pressed for the facts of the robbery he asked whether he would have to testify 'if he could tell them the facts of the case and give them the answer to the bank robbery.' He said that 'he could supply all the necessary details of the bank robbery but would think it over.' The defendant did not at any time admit participation in the robbery. He 'never denied participation in the bank robbery' but upon being asked had said he was 'incapable of bank robbery.' The witness had previously testified that the defendant on September 22 had denied participation. F.B.I. agent Rico testified that he told the defendant that they would not be sitting there if they did not believe that the defendant was a participant in the robbery and that the investigation of the robbery indicated that he was a participant. Agent Rico testified that he asked the defendant to give the whole story, and the defendant stated that he had already 'said too much and was not going to say anything more.' The defendant also said: Goss left on September 18 saying he was leaving because things were getting a 'little too hot'; the defendant changed the ten and twenty dollar bills he had from Goss into one and five dollar bills; he did not like the two dollar bills, and 'if he got them in a game his purpose in the game would be to immediately get rid of them because they were considered * * * bad luck'; he could 'give the whole story to the extent that he would not have to testify'; he was already 'in the bag' and could not hurt himself any more.

One Cuddy, who lived in the house, and the defendant's wife testified that the defendant was at home on September 17 until about 2 or 2:30 p. m.

A teller, an eyewitness, testified that the defendant's height, build, weight and eyes were similar to those of the robber who stood in front of his cage on September 17, but that he could not identify the defendant as the robber.

The defendant did not testify.

1. The defendant excepted to the denial of a motion for a directed verdict of not guilty of robbery and contends that the circumstantial evidence left it conjectural whether the defendant stole or received. We disagree.

In cases where the evidence is circumstantial and recent possession is relied on, several inferences are possible. See Commonwealth v. Kelley, 333 Mass. 191, 195, 129 N.E.2d 900. If the inferences of theft and receiving are equally probable, the issue is conjectural. See Commonwealth v. O'Brien, 305 Mass. 393, 401-403, 26 N.E.2d 235; Commonwealth v. Shea, 324 Mass. 710, 713, 88 N.E.2d 645; People v. Galbo, 218 N.Y. 283, 291-294, 112 N.E. 1041, 1044, 2 A.L.R. 1220. ('Sometimes the circumstances may make it proper for a jury to say which inference is the true one').

The defendant asserts that while the testimony of his denial of guilt of robbery permitted the inference that he was a receiver (Commonwealth v. Kelley, 333 Mass. 191, 195, 129 N.E.2d 900), disbelief of this denial left the proper inference speculative on the other testimony. The difficulty with this contention is that it is predicated, as we view it, on an acceptance of all the testimony, or certain parts of it. There was indeed testimony which if believed made the inference of receiving the more probable. See Regina v. Collier, 4 Jur. 703. But the jury could believe or disbelieve part or all of the testimony. There was certainly testimony which if believed warranted the inference of robbery. It was uncontroverted that the defendant was in recent possession of stolen money. The jury could have found that he gave inconsistent accounts of events at critical times, did not so explain his possession of the stolen $2 bills that his claim of innocent acquisition could be checked, admitted that he could supply all the necessary details of the bank robbery and could give the whole story if he would not have to testify, and did not directly deny participation when charged with it. That this is sufficient to support a finding of guilty of robbery is well established. Commonwealth v. Montgomery, 11 Metc. 534, 537; Commonwealth v. Parmenter, 101 Mass. 211; Commonwealth v. McGorty, 114 Mass. 299, 302; Commonwealth v. Taylor, 210 Mass. 443, 97 N.E. 94; Commonwealth v. Salah, 253 Mass. 549, 551, 149 N.E. 417; Commonwealth v. O'Hare, 254 Mass. 564, 565, 150 N.E. 840; Commonwealth v. Grace, 265 Mass. 119, 123-124, 163 N.E. 855; Commonwealth v. Kelley, 333 Mass. 191, 193-194, 129 N.E.2d 900; Commonwealth v. Torrealba, 316 Mass. 24, 29, 54 N.E.2d 939; McNamara v. Henkel, 226 U.S. 520, 524-525, 33 S.Ct. 146, 57 L.Ed. 330; Boston & Worcester R. Corp. v. Dana, 1 Gray 83, 102-103 (unexplained possession of money and other property tended to implicate the defendant in the taking and 'was competent, not on the ground, as the defendant supposes, of its being proof of possession of stolen property, but upon the broader and more general principle of being a material and relevant fact to the point in issue before the jury'). Wigmore, Evidence, 3d Ed., §§ 153, 154. See Commonwealth v. O'Neil, 169 Mass. 394, 48 N.E. 134; Commonwealth v. Devaney, 182 Mass. 33, 35, 64 N.E. 402; Commonwealth v. Tucker, 189 Mass. 457, 466-467, 76 N.E. 127, 7 L.R.A.,N.S., 1056; Wilkerson v. United States, 7 Cir., 41 F.2d 654, 657, certiorari denied 282 U.S. 894, 51 S.Ct. 179, 75 L.Ed. 788.

The fact that the two indictments were tried together, thus directing attention to the possible conflicting inferences which are present in the greater number of cases in which recent possession is relied on, did not change the character or extent of the evidence which was probative of either crime. The evidence relevant to either indictment is to be weighed as though the other indictment were absent. See Regina v. Langmead, 9 Cox C.C. 464, 468. ¹ It was formerly a cause of criticism of English practice that, because such charges could not be tried together, and the jury were not free to decide between the inferences, injustice was done in some cases. The statute allowing counts for larceny to be joined with counts for receiving was deemed to cure the fault. Best, Evidence (11th Ed.) 203; Wills, Circumstantial Evidence, 7th Ed., 103.

2. No prejudicial error in the charge is shown. The judge said in part, 'Now, the possession of property which has recently been stolen is evidence that the person in possession was the thief. * * * [The inference to be drawn as between theft and receipt of stolen goods] would depend upon the explanation he gave * * *. [T]he facts often will permit of more than one inference, and it is a question of which inference you find has been established beyond a reasonable doubt. * * * He can't be found guilty on both indictments. * * * It is for you to say. * * * [I]f you find * * * [the testimony as to conflicting and evasive accounts] to be true, it goes to the credibility of * * * [the defendant and his wife] and Mr. Cuddy and goes to the explanation of the presence of this money in the * * * bedroom, if you find it was there and you find it was part of the stolen money. * * * [N]o inference is to be drawn against a defendant [from his failure to testify]. * * * But you may draw inferences from any statements that you find he made outside of court when he talked to the officers. Did he know that this was stolen money? * * * [W]as he engaged * * * in this robbery? * * * If you are not [so] satisfied * * * you get to the question of whether he was a receiver of stolen money. * * * [D]id he know about it? If he didn't * * * [you may ask yourselves] why did he say to the officers, ...