Com. v. Valleca

• Decision Date: 03 November 1970
• Citation: 358 Mass. 242,263 N.E.2d 468
• Parties: COMMONWEALTH v. Carl VALLECA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 468

263 N.E.2d 468

358 Mass. 242

COMMONWEALTH v. Carl VALLECA.

Supreme Judicial Court of Massachusetts, Essex.

Argued Sept. 21, 1970.

Decided Nov. 3, 1970.

Joel R. Labell, Lawrence, for defendant.

Howard J. Camuso, Asst. Dist. Atty., for the Commonwealth.

Before SPALDING, CUTTER, SPIEGEL, REARDON, and QUIRICO, JJ. REARDON, Justice.

The defendant appeals from a sentence imposed in a trial held subject to the provisions of G.L. c. 278, §§ 33A--33G, inclusive, following the return of guilty verdicts on charges of being an accessory after the fact to breaking and entering, and of receiving stolen property. The facts are as follows.

During the night of February 16--17, 1968, a break took place at the Addison Gallery at Phillips Andover Academy in Andover. Sixty-seven silver pieces valued in excess of $300,000 were taken. On February 22, 1968, Bartlett H. Hayes, Jr., director of the gallery, received a telephone call from a person whose voice he did not recognize. As a result of this call he went to a restaurant in Methuen the same day where he met with this person, who turned out to be the defendant. The defendant told Hayes that he knew the circumstances of the taking of the silver, as well as the 'two youths' who had broken into and entered the gallery. The defendant further stated that the youths had approached him in order to facilitate the disposal of the silver and he asked Hayes whether the gallery would be willing to pay a reward for its return. At a later date the defendant told Hayes the reward would have to be raised to $10,000 from $7,500 because of the intervention of another party. After further arrangement with Hayes, $10,000 was paid to the defendant in twenty and fifty dollar bills. The defendant had Hayes write out a statement providing that in the event the silver was not returned after the payment of the $10,000 the defendant might be held for criminal extortion.

1. The defendant first complains that the indictment for receiving stolen property should have been dismissed on the grounds that the wording of the indictment was confusing, ungrammatical, and unintelligible, counter to G.L. c. 277, § 17, and that the offence was not proved as charged. Despite the confusing wording of the indictment, the defendant should have been able to understand the nature of the charge against him. If there were confusion he could have availed himself of a bill of particulars as provided in G.L. c. 277, § 40. See G.L. c. 277, § 34, which states that '(a)n indictment shall not be quashed or be considered defective or insufficient if it is sufficient to enable the defendant to understand the charge and prepare his defence.'

The indictment stated in part that the defendant 'did buy, receive, and aid in the concealment of' stolen property while the corresponding part of the statute on which it is based, G.L. c. 266, § 60, reads, 'Whoever buys, receives or aids in the concealment of stolen or embezzled property.'

The Commonwealth has properly followed the suggested form of indictment set forth in G.L. c. 277, § 79, which states in the conjunctive, as it should, the elements of the offence defined in G.L. c. 266, § 60. In Commonwealth v. Martin, 304 Mass. 320, 322, 23 N.E.2d 876, 878, it was held that when a statute 'disjunctively prescribes several acts in a series of acts, all of which are alleged in the complaint, then the Commonwealth may prove the violation of the statute by proof of the performance by the defendant of any one of the said acts.' See Commonwealth v. St. Pierre, 175 Mass. 48, 55 N.E. 482; Commonwealth v. Ahern, 228 Mass. 547, 117 N.E. 827.

2. It is argued on behalf of the defendant that the trial judge should have dismissed the indictment for being an accessory after the fact to breaking and entering on the ground that the burden was upon the Commonwealth to prove that the defendant was or was not related to the thieves. See G.L. c. 274, § 4, as amended through St.1943, c. 488, § 1.

The Commonwealth notes the defendant's reliance on two cases, Commonwealth v. Sokorelis, 254 Mass. 454, 150 N.E. 197 (1926), and Commonwealth v. Wood, 302 Mass. 265, 19 N.E.2d 320 (1939). An examination of the pertinent statute, G.L. c 274, § 4, as it existed when they were decided, indicates that the burden of proof of the issue of relationship was placed upon the Commonwealth. The legislative history underlying St.1943, c. 488, § 1, which amended c. 274, § 4, indicates that it was the intent of the General Court that the burden of going forward on the issue of relationship should be placed on the defendant. 1943 House Doc. No. 1666. 1943 Senate Journal, p. 909. The clear legislative intent made manifest in the 1943 amendment negates the defendant's argument. The fact that the indictment in this case alleges that the defendant was an accessory after the fact to the commission of a crime by principals described therein as 'John Doe and Richard Roe' does not relieve the defendant of his burden of going forward on this issue if he chooses to avail himself of this defence. See Commonwealth v. Doherty, 353 Mass. 197, 229 N.E.2d 267.

3. Error is alleged in allowing in evidence the opinion of Hayes as to the value of the stolen silver on the ground that he was not an expert on its market value. The evidence shows that he had been the director of the gallery for twenty-eight years and he gave testimony on his background, experience, and knowledge of the exhibits and...