Commonwealth v. Baldi

• Decision Date: 09 January 1925
• Citation: 250 Mass. 528
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. HUGO BALDI & another. SAME v. SAME.

250 Mass. 528

COMMONWEALTH v. HUGO BALDI & another. SAME v. SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

January 9, 1925

December 12, 1924.

Present: RUGG, C.

J., BRALEY, PIERCE CARROLL, & WAIT, JJ.

Robbery. Conspiracy.

Receiving Stolen Goods. Evidence, Presumptions and burden of proof, Relevancy and materiality. Practice, Criminal, Election, Indictments tried together, Report. Words, "Conviction.

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At the trial of indictments charging one of two partners engaged in illegal traffic in intoxicating liquors with conspiracy to rob and with robbery, being armed, the evidence tended, in substance to show that the defendant, after spending part of an afternoon with his partner, by appointment met a seller of intoxicating liquors and a broker for the seller in Waltham for the purpose of making a sale; that there had been an agreement with the broker that the liquor be delivered in Clinton but, on the day of the meeting, the place of delivery was changed by the defendant to Marlborough; that delivery was ordered by the defendant to be made to a designated person and, when asked on the stand if there was such a person, the defendant said he did not know and admitted that he had made no effort to find him; that the defendant, the broker and the seller with the liquor drove in the seller's car to Marlborough to a certain ice house where the defendant left the party, ostensibly to see about a following automobile; that then the broker and the seller were overpowered, bound, and robbed by other persons; that the defendant returning, he was bound without being robbed in circumstances warranting an inference that his being bound was a subterfuge; that later a revolver was found near the place where the defendant had stood; that the following day the liquor was found hidden in the cellar of the partner of the defendant and the automobile of the seller was found three quarters of a mile from the partner's house. Held that the evidence warranted verdicts of guilty on both indictments.

With the trial of the indictments above described, the partner of the defendant therein was tried on indictments charging him with conspiracy and with being an accessory to the robbery after the fact and with receiving stolen goods. Besides the evidence above described, it appeared that the defendant denied to the police officers that he had seen his partner the afternoon of the robbery, but evidence warranted a finding that he had been with him. Held, that the evidence warranted his conviction.

It was not error for the judge presiding at the trial of the indictments above described to deny motions that the Commonwealth be required to elect at the beginning of the trial upon which indictment it would proceed. At the trial above described, the seller of the liquor testified for the

Commonwealth. On cross-examination he was asked if he saw anything indicating that the principal defendant knew any of the men who robbed the witness and the broker. The evidence was excluded. The only evidence as to the opportunity of the witness to see his assailants tended to show that he had no such opportunity. Held, that the action of the judge was within his discretionary power and that no error was shown.

It was proper for the judge, at the trial above described, to exclude a telephone conversation held on the morning after the robbery between a witness for the defendant, who was a partner of the broker, and the defendant who was accused as accessory and of receiving stolen property, where it was asserted by the defendant that the conversation would have tended merely to show that the defendant then said that he knew nothing of the occurrences surrounding the robbery. At the trial above described, the defendant, to meet a contention by the

Commonwealth that the principal defendant received no order to deliver liquor in Marlborough and had made no effort to locate the alleged consignee or to procure his presence at the trial, showed that the defendant for some time after the robbery had been in jail. In response to questions by the district attorney, admitted subject to exceptions by the defendant, the defendant then admitted that he had got out of jail previous to his indictment and over four months before the trial, and that he had not been in jail since. Held, that the admission of the question on cross-examination was proper.

The word "conviction" in G.L.c. 278, Section 30, is used in two different senses: it may include the judgment of the court following a verdict of guilty or confession of guilt, or may mean a verdict of guilty against the defendant or his confession in open court, without judgment or sentence; and therefore a judge of the Superior Court, presiding at the trial of an indictment, can report the case after a verdict of guilty and before the imposition of sentence.

FOUR INDICTMENTS, found and returned on December 7, 1923, the first (numbered 9919 in the Superior Court) charging Hugo Baldi and Bernardo Martino with conspiring together to assault and rob one Dennis Meehan of certain liquor and money; the second (numbered 9920 in the Superior

Court) charging the defendant Martino with being accessory before the fact of the robbery of Meehan by Baldi; the third (numbered 9921 in the Superior Court) charging that Baldi, being armed with a dangerous weapon, did assault and rob Meehan of $2,900 and twenty-four cases of liquor; and the fourth (numbered 9926 in the Superior Court) charging Martino with receiving the stolen goods.

In the Superior Court, the indictments were tried together before Fosdick, J. Before the empanelling of the jury, the defendants moved that the Commonwealth be required to elect upon which of the indictments it would proceed against the defendants. The motions were denied subject to exceptions saved by the defendants.

The indictments then were tried with four others described in the opinion, in which verdicts of not guilty were returned by order of the trial judge at the close of the evidence of the Commonwealth. The witness John F. Gillespie, referred to in the opinion, was called by the defendants and testified that he had been associated in business with Wortham, that up to and before August 13, he had been engaged in arranging for the illegal sale of intoxicating liquors and had had "more or less transactions with the defendant Baldi"; that on the morning of August 14, he had a conversation with the defendant Martino on the telephone. The defendants then offered to prove "that this witness called up the defendant Bernardo Martino on August 14, the day after the occurrences set forth in these indictments, and asked him if he knew of the occurrence and if he knew that Mr. Meehan and Baldi and Mr. Wortham were held in Marlboro, and that Martino said No, that he did not know anything about it, and that Martino asked him to get the details as to which court they were held in, where they were held, and stated that he would go out with him and see what could be done about getting bail as soon as Mr. Gillespie could tell him what the charge was and where they were held." The testimony was excluded and, the defendant Martino being asked regarding the same telephone conversation, it was again excluded, the defendants alleging exceptions to both exclusions.

The defendants moved severally as to each indictment that verdicts of not guilty be ordered. The motions were denied and verdicts of guilty were returned by the jury. In cases numbered 9920 and 9921 the defendants alleged exceptions.

Each of the defendants having been sentenced under indictments numbered 9920 and 9921 to not more than ten years nor less than five years in State's prison with one day solitary, and the sentences stayed pending the prosecution of their exceptions, the indictments in 9919 and 9926 were placed on file by order of the judge and those cases were reported to this court for determination.

W. S. Kinney, for the defendants. R. T. Bushnell, Assistant District Attorney, for the Commonwealth.

CARROLL, J. The defendant Baldi was found guilty and sentenced on an indictment (numbered 9921) charging him with robbery of Dennis Meehan, being armed. The defendant Martino was found guilty and sentenced on an indictment (numbered 9920) charging him as an accessory before the fact to the robbery of Meehan. These two cases are before us on the defendants' bill of exceptions. On two other indictments (numbered 9919 and 9926) the defendants were found guilty. These indictments were then placed on file by order of the judge. Indictment number 9919, charging the defendants with conspiracy to commit the crime of robbery from Meehan, and indictment number 9926, against Martino for receiving stolen goods, were reported to this court, the evidence in the bill of exceptions being incorporated in the report. These four indictments were tried together with four other indictments in two of which Baldi was charged with being an accessory after the fact to the murder of John B. Gourard; and in two of which Martino was charged with the same crime. In these four last mentioned indictments, verdicts were ordered for the defendants. Eight cases were tried together. Before the jury was empanelled the defendants moved that the Commonwealth be required to elect upon which of these indictments it would proceed against the defendants. The motion was overruled. The defendants moved at the close of evidence that a verdict of not guilty be ordered in cases numbered 9919, 9926, 9921 and 9920, which motion was denied, the defendants excepting.

In August, 1923 Baldi arranged with one Wortham to furnish seventy-five cases of Scotch whiskey. Baldi, during the two years previous, had several transactions with Wortham involving the sale of liquor. On the night of ...