Commonwealth v. Boris

• Decision Date: 01 December 1944
• Citation: 58 N.E.2d 8,317 Mass. 309
• Parties: COMMONWEALTH v. BORIS. SAME v. MARCUS. SAME v. NOISEUX.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 309

58 N.E.2d 8

COMMONWEALTH

v.BORIS.

SAME

v.MARCUS.

SAME

v.NOISEUX.

Supreme Judicial Court of Massachusetts, Essex.

Dec. 1, 1944.

Stanley H. Boris, Hyman Marcus, and Paul R. Noiseux, on separate indictments, which were tried together, were convicted of receiving stolen property, and they appeal.

Judgment reversed.Appeal from Superior Court, Essex County; C. C. Cabot, Judge.

Before FIELD, C. J., and LUMMUS, QUA, RONAN, and SPALDING, JJ.

H. A. Cregg, Dist. Atty., of Lawrence, J. J. Ryan, Jr., Asst. Dist. Atty., of Haver-hill, and E. F. Cregg. Asst. Atty. Gen., for the Commonwealth.

E. F. Flynn and S. Abrams, both of Boston, for defendant Hyman Marcus.

H. H. Toltz, of Boston, for defendant Stanley H. Boris.

P. J. Durkin, of Salem, for defendant Noiseux.

RONAN, Justice.

These defendants were convicted after a trial of three indictments, each one of which charged one of the defendants separately with receiving stolen property. These indictments were tried together with a similar indictment against one Talbert, who was acquitted. The trial was held in accordance with G.L.(Ter.Ed.) c. 278, §§ 33A–33G, as amended. The defendants have alleged various assignments of error.

The second assignment of error of Marcus and the first assignment of error of Noiseux are based upon the refusal of the judge to recognize their waivers of a jury trial. The statute, G.L.(Ter.Ed). c. 263, § 6, as amended by St.1933, c. 246, § 1, provides in so far as material that a defendant in a criminal case other than a capital case may ‘waive his right to trial by jury by signing a written waiver thereof and filing the same with the clerk of the court, whereupon he shall be tried by the court instead of by a jury, but not, however, unless all the defendants, if there are two or more charged with offences 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 and of the defendants.’

The election of one charged with a crime to be tried by a judge without a jury could not be effectually exercised prior to the enactment of St.1929, c. 185, § 1, which was the original form of what is now G.L.(Ter.Ed.) c. 263, § 6, as amended, conferring jurisdiction on the Superior Court to hear criminal cases where a defendant waives trial by jury. Commonwealth v. Rowe, 257 Mass. 172, 153 N.E. 537, 48 A.L.R. 762;Commonwealth v. Millen, 289 Mass. 441, 194 N.E. 463;DeGolyer v. Commonwealth, 314 Mass. 626, 51 N.E.2d 251. But as the original statute read, a defendant could not waive a jury trial unless all the defendants did so. The purpose of this provision was to avoid double trials. This provision was evidently considered as placing too great a limitation upon a defendant's right to be tried without a jury, and by virtue of the amendment, St.1933, c. 246, § 1, he was not to be deprived of that right by the failure of other defendants to waive a jury trial unless the offenses with which the defendants were charge arose out of ‘the same single chain of circumstances or events.’

Marcus and Noiseux each contend that the crimes with which he was charged did not arise out of the same single chain of circumstances as the crimes with which the other three defendants were charged. They point to the indictments as charging separate and independent offences. But the indictments were sufficient in form, and there was no occasion to allege any connection between the crimes alleged in one indictment and those alleged in the other indictments. As far as the indictments themselves show, the offenses which they charged may or may not have grown out of the same single chain of circumstances. The transcript of the evidence does not show what evidence, if any, was heard by the judge, but it does appear that the matter was fully discussed by the judge, the district attorney and counsel for these defendants. It may be, as far as we know, that the statements of counsel were considered as evidence. What these statements were is not disclosed by the record. The statement of the district attorney might well have been sufficient basis for the conclusion reached by the judge. These defendants consented to having the question decided in the manner in which it was presented to the judge. They had ample opportunity to present such evidence as they disired. The decision on the question raised by the waivers had to be decided before trial upon such evidence or statements in lieu of evidence as the parties submitted. The decision of the judge upon this preliminary question of fact is conclusive unless, upon the evidence or facts submitted to him, it is shown to be erroneous in law. In the absence of anything on this record showing what was submitted to the judge, his decision cannot be reversed. Commonwealth v. Sturtivant, 117 Mass. 122, 137, 19 An.Rep. 401; Dexter v. Thayer, 189 Mass. 114, 115, 75 N.E. 223;Commonwealth v. Marshall, 211 Mass. 86, 90, 97 N.E. 632;Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 599, 108 N.E. 474;Commonwealth v. Russ, 232 Mass. 58, 59, 122 N.E. 176;Coghlan v. White, 236 Mass. 165, 168, 169, 128 N.E. 33;Cummings v. Moore, 305 Mass. 105, 107, 25 N.E.2d 221. The burden is always upon the excepting party to set out in his bill of exceptions all the material evidence upon which the ruling of which he complains was based. Commonwealth v. McIntosh, 259 Mass. 388, 156 N.E. 712;DeFilippo v. Di Pietro, 265 Mass. 186, 163 N.E. 742;Morganti v. Casey, 311 Mass. 46, 40 N.E.2d 257. Where, as here, a review is sought under G.L.(Ter. Ed.) c. 278, §§ 33A–33G, as amended, the evidence upon which an assignment of error is based must be made a part of the record. See section 33D. Commonwealth v. Robinson, 295 Mass. 471, 4 N.E.2d 300;Dolan v. Commonwealth, 304 Mass. 325, 334, 23 N.E.2d 904.

The fifth assignment of error of Marcus and the first assignment of error of Boris are based upon the refusal of the judge to direct verdicts of not guilty. There was evidence that sugar was scarce, and to secure an ample supply was one of the chief worries of Boris, who conducted a bakery in Chelsea. Boris usually purchased goods, including sugar, from Garland & Newton, Inc., through orders given to the salesman who called at his bakery and not, as in this instance, through unsolicited offers from a truck driver employed by this corporation who insisted upon payment and was paid at Boris's dwelling house for the sugar. This transaction was outside of the ordinary course of trade between Boris and Garland & Newton, Inc. Boris resided in Salem. The receipt of the sugar as his house, the payment of nearly twice its market price in cash without giving any ration points or certificate to the seller, the failure of Boris to bring the matter to the attention of the salesman of Garland & Newton, Inc., who visited him weekly, and his statement to the police that he suspected that the sugar had been stolen, although he testified that he meant that he did not extertain such a suspicion until he was interviewed by the police, presented an issue of fact as to whether, when he received the sugar, he knew that it had been stolen. The Commonwealth was not required to prove that he then knew the actual facts of the theft. It was undisputed that the sugar had been stolen and it was enough if the circumstances attending the receipt of the goods generated an actual belief in him that the property had been stolen. Commonwealth v. Gazzolo, 123 Mass. 220, 25 Am.Rep. 79;Commonwealth v. Leonard, 140 Mass. 473, 4 N.E. 96,54 Am.Rep. 485;Commonwealth v. Kronick, 196 Mass. 286, 82 N.E. 39;Commonwealth v. Peopcik, 251 Mass. 369, 146 N.E. 661;Commonwealth v. Parrotta, 316 Mass. 307, 55 N.E.2d 456.

Marcus operated two restaurants. One Grace Bouchard, who was employed at the diner of the defendant Noiseux and had been previously employed by Marcus, telephoned Marcus on November 14, 1943, that two men were at the diner who had seven tubs of lard. Marcus agreed to buy it. She told these men, who could have been found to be Conant and Landry, to deliver three tubs to one restaurant and four to the other and then go to Marcus's office and receive their pay. Both delivered the lard as directed and Conant was paid by a check of Marcus. Conant and Landry had broken into the bakery of Irving shortly before and had stolen some crates of eggs and seven tubs of lard which they had stored in Noiseux's diner. Both of them again broke into this bakery, and on Sunday morning, November 28, 1943, Conant telephoned Marcus telling him he had some eggs and lard, that they were on his truck, that the lard was spoiling and he wanted to sell it and have his truck free for use early the next morning. Marcus made an appointment and met Conant and Landry at one of his restaurants. The goods were in the back of an automobile. Marcus inquired whether the goods had been stolen and was told that they had not. There was evidence that one of the lard containers was damaged and that some of the eggs had been broken in one of the crates. An inspection of the other crates showed that the eggs were not graded as to size. Marcus paid $13 a crate for two crates of eggs, $6.50 for the broken crate, and fifteen cents a pound for the lard. This was less than the market price. Lard was rationed and a purchaser was required to give the seller ration points. Marcus gave no points, although there was evidence that he offered to do so, but Conant did not want any ration points. There was also evidence that one of the crates of eggs had on it a railway express tag with a name on it when Marcus examined the goods at his restaurant and before he agreed upon the prices he would pay. The dealings of Marcus with Conant and Landry which were instigated by Bouchard were not in the regular course of business. It was unusual to make delivery of eggs and lard from a private automobile on a Sunday afternoon....