Commonwealth v. O'Brien

• Decision Date: 25 November 1925
• Parties: COMMONWEALTH v. O'BRIEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 86

149 N.E. 600

COMMONWEALTH

v.O'BRIEN.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 25, 1925.

Exceptions from Superior Court, Suffolk County; Philip J. O'Connell, Judge.

Thomas O'Brien, alias, was found guilty of conspiracy, and he excepts. Exceptions overruled.

1. Conspiracy k47-Evidence held to prove conspiracy between defendant's alleged accomplices to obtain bonds by forged drafts.

Evidence held to prove criminal conspiracy by defendant's alleged accomplices to obtain bonds by using a forged draft.

2. Conspiracy k48-Directed verdict for defendant properly overruled.

In prosecution for conspiracy to obtain bonds by means of a forged draft, where circumstantial evidence connected defendant with criminal conspiracy of his alleged accomplices, there was no error in refusal of directed verdict.

3. Criminal law k404(5)-Defendant's letter to police inspector rightly admitted as standard of comparison.

In prosecution for conspiracy to obtain bonds by forged draft, letter from defendant to police inspector was admitted rightly as genuine handwriting of defendant and as standard of comparison.

4. Criminal law k742(1)-Credibility of expert held for jury.

In prosecution for conspiracy to obtain bonds by a forged draft, credibility of handwriting expert called by commonwealth was for jury.

5. Criminal law k404(5)-Jury, if satisfied letter was in defendant's handwriting, could make comparison.

In prosecution for conspiracy to obtain bonds by forged draft, where letter from defendant to police inspector was admitted in evidence, jury, if satisfied it was in defendant's handwriting, could make comparison themselves.

6. Criminal law k1178-Exceptions not argued are waived.

Exceptions to denial of defendant's motion for new trial, not having been argued, are waived.

M. Caro, of Boston, for the Commonwealth.

Patrick J. Delaney, John B. O'Hare, and George C. Strong, all of Boston, for defendant.

BRALEY, J.

The defendant having been acquitted on the indictment for forgery, his exceptions are confined to the indictment for conspiracy, on which he was found guilty. The indictment charged that the defendant and George A. Hastings and Robert O. Sears conspired together to steal the property, moneys, goods and chattels of George C. Lee, who could be found by the jury to have been a member of the banking firm of Lee, Higginson & Co., doing business in Boston, but only the defendant and Hastings were tried as Sears had not been arrested.

[1] The defendant offered no evidence and the case was submitted to the jury on the testimony introduced by the commonwealth. If the jury accepted this testimony as true, they could find that a clerk of the company employed as a seller of bonds, in response to a letter dated June 24, 1924, addressed to the firm, bearing on the letter head the words, ‘Hotel Vendome,’ and purporting to be signed by Sears, ‘per W. L. G.,’ had an interview with Sears, who after further negotiations gave an order for the purchase of certain bonds, the price of which as finally fixed was $34,472.38. When Sears came to the office to receive and pay for the bonds, he stated, that his money being on deposit in a bank in Worcester he would have to arrange for a draft. Sears telephoned to Worcester using the firm telephone, and then said to the clerk, that his friend would get the draft, and either he or his friend would bring in the draft and pay for the bonds in the afternoon. Sears left, but later telephoned that his friend had arrived with the draft, and that because of other engagements while he could not come himself, he would send some one with the draft to whom the bonds were to be delivered. Very shortly after this message had been received, Hastings came for the bonds and brought a draft seemingly signed by ‘S. A. Ellsworth, Vice President,’ and drawn on the Mechanics' National Bank of Worcester, payable to the order of Lee, Higginson & Co. for $34,742.38. The draft was forged, and the bonds were never delivered. There also was found in the defendant Hastings' pocket a letter to the Hotel Vendome, apparently signed by Sears, with a ‘final draft for twenty dollars in...