Commonwealth v. Boris
| Decision Date | 01 December 1944 |
| Parties | COMMONWEALTH v. STANLEY H. BORIS (and two companion cases [1]). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 5, 1944.
Present: FIELD, C.
J., LUMMUS, QUA RONAN, & SPALDING, JJ.
Practice, Criminal Preliminary question, Trial without jury, Appeal with assignment of errors. Error, Whether error shown. Receiving Stolen Goods. Evidence, Admissions and confessions, Of reputation. A refusal by a trial judge to recognize a waiver of jury trial under G. L.
(Ter. Ed.) c. 263 Section 6, as amended by St. 1933, c. 246, Section 1, by one of several defendants separately indicted for the same kind of offence by indictments not showing whether or not the offences charged grew out of the same single chain of circumstances or events, must stand where the record before this court did not show what was submitted for consideration by the judge at a hearing on the matter of the waiver. Upon a review of a criminal case tried under G. L. (Ter. Ed.) c 278,
Sections 33A-33G, as amended, evidence upon which an assignment of error is based must be made a part of the record.
A finding of guilt of knowingly receiving stolen goods was warranted as to each of two defendants, one the proprietor of a bakery and the other the proprietor of a restaurant, by evidence of the circumstances in which he bought stolen rationed foods outside the ordinary course of purchasing, received delivery thereof at an unusual time or place and in an unusual manner, and paid for them a price not the market price without giving ration points to the seller.
A purchaser of stolen goods must personally know or believe that they were stolen in order to be convicted of receiving stolen goods in violation of G. L. (Ter. Ed.) c. 266, Section 60; it is not enough that he bought the goods in circumstances which would have led a reasonably intelligent and prudent man to believe that they had been stolen.
At the trial of an indictment against a purchaser of stolen goods for receiving them in violation of G. L. (Ter. Ed.) c. 266, Section 60, evidence, merely that the defendant was silent when a statement was made in his presence before his arrest that the one who had informed him that the goods were for sale knew that they had been stolen, did not show an implied admission by the defendant and should have been excluded.
Testimony that a defendant's reputation for honesty was good was properly struck out at a criminal trial where the witness was not shown to have been a member of the same community with the defendant in such a sense as to give him familiarity with the defendant's reputation, and admitted that he had never heard it discussed.
THREE INDICTMENTS, found and returned on January 14, 1944. The cases were tried before Cabot, J.
In this court the cases were submitted on briefs. H. H. Toltz, for the defendant Boris.
E. F. Flynn & S.
Abrams, for the defendant Marcus.
P. J. Durkin, for the defendant Noiseux.
H. A. Cregg, District Attorney, J.
J. Ryan, Jr., & E.
F. Cregg, Assistant District Attorneys, for the Commonwealth.
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, Sections 33A-33G, as amended. The defendants have assigned various errors.
The second error assigned by Marcus and the first error assigned by 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, Section 6, as amended by St. 1933, c. 246, Section 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 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."
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, Section 1, which was the original form of what is now G. L. (Ter. Ed.) c. 263, Section 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 . Commonwealth v. Millen, 289 Mass. 441. DeGolyer v. Commonwealth, 314 Mass. 626 . 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, Section 1, he was not to be deprived of that right by the failure of other defendants to waive a jury trial unless the offences with which the defendants were charged 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 offences 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 desired. 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. Dexter v. Thayer, 189 Mass. 114 , 115. Commonwealth v. Marshall, 211 Mass. 86 , 90. Thornhill v. Carpenter-Morton Co. 220 Mass. 593 , 599. Commonwealth v. Russ, 232 Mass. 58 , 59. Coghlan v. White, 236 Mass. 165 , 168-169. Cummings v. Moore, 305 Mass. 105 , 107. 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 . DeFilippo v. DiPietro, 265 Mass. 186 . Morganti v. Casey, 311 Mass. 46 . Where, as here, a review is sought under G. L. (Ter. Ed.) c. 278, Sections 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. Dolan v. Commonwealth, 304 Mass. 325 , 334.
The fifth error assigned by Marcus and the first error assigned by 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 at 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 entertain 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 . Commonwealth v. Leonard, 140 Mass. 473. Commonwealth v. Kronick, 196 Mass. 286 . Commonwealth v. Peopcik, 251 Mass....
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