Commonwealth v. Cabot

• Decision Date: 14 March 1922
• Citation: 241 Mass. 131
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. GODFREY L. CABOT & others. SAME v. MICHAEL J. HAYES & others.

241 Mass. 131

COMMONWEALTH v. GODFREY L. CABOT & others. SAME v. MICHAEL J. HAYES & others.

Supreme Judicial Court of Massachusetts, Suffolk.

March 14, 1922

October 20, 21 1921.

Present: RUGG, C.

J., CROSBY CARROLL, & JENNEY, JJ,

Larceny. Receiving Stolen Property.

Pleading, Criminal Indictment, Bill of particulars. Practice, Criminal Variance, Trial of indictments together, Acquittal by reason of a variance.

While a thing stolen must be of some value to be the subject of an indictment for larceny or for buying it, receiving it or aiding in its concealment after it is stolen, it need not be an article having any special appreciable or market value.

An indictment in several counts charged the buying, receiving or aiding in the concealment of property of a certain lawyer, specifically described as "two sheets of paper being copies of certain letters. . . . one other sheet of paper being an unsigned affidavit of" a client of the lawyer,

"one other sheet of paper being a copy of a declaration in "an action being prosecuted for a client by the lawyer, a letter and a photograph, and a certain affidavit, the defendants knowing that the property had been stolen. The alleged owner of the property testified that the intrinsic value of the various articles of property was not more than a few dollars that some of the papers were of value to him because they involved his reputation, that the "market value of the copies of the . . . letters was, in the hundreds of thousands of dollars in . . . [his] opinion, at that time." Held, that findings, that the several articles alleged to have been stolen were of some value, were warranted.

An objection, that in sundry counts of an indictment for buying, receiving or aiding in the concealment of "one letter," "one photograph," and "one affidavit," knowing them to be stolen, the articles were not described as sheets of paper, did not entitle the defendant to an acquittal on the ground of variance, where it appeared that the question of the sufficiency of the description of the articles mentioned in the indictment had not been raised by him by appropriate action before the trial.

At the trial of the indictment above described, there was evidence tending to show that, when the events occurred, the defendant charged with receiving the copies of letters, the copy of declaration and the photograph, knowing them to have been stolen, was counsel for a bar association in proceedings before a special committee of the grievance committee of that association to investigate among other things the conduct of the lawyer whose property they were alleged to be; that the complainant before the committee employed the alleged thief as a detective, and that he, at the instigation of his employer and of the defendant, secured employment in the lawyer's office in October, 1919, and while so employed took the articles described and gave them to the defendant, who knew whence they had been taken and the circumstances of the taking; that the articles were not returned to the detective, who, when he took them, did not intend to return them to the lawyer and understood that they were taken to be used in an investigation which was then being held before the sub-committee of the bar association; that at a meeting of that sub-committee in July, 1920, it appeared that the articles had been handed to the defendant by the detective, and that shortly after that date they were returned to the lawyer. Held, that

(1) Even if the papers and photograph were taken solely for use in the inquiry then pending, that purpose did not require a finding that there was no intent permanently to deprive the owner of their possession as distinguished from a temporary or passing use;

(2) It could not have been ruled properly as a matter of law that, when the articles were taken by the defendant and received by the defendant, there was no intent permanently to deprive the owner of his property;

(3) The evidence justified a finding that the possession of the property was not that of the owner or for a temporary use;

(4) It does not lie in the mouth of one who has taken property by stealth or violence, or of one who has wrongfully received property with knowledge of such facts, to claim that as matter of law a definite intent to keep it permanently must be proven expressly: such an intent may be inferred from all the facts;

(5) The defendant having known the circumstances in which the property had been taken, it was no defence that lie thought his conduct was justifiable.

The evidence of the Commonwealth in support of that count of the indictment above described, charging that the defendant bought, received and aided in the concealment of a certain affidavit, related to the stealing and receiving of a copy of the affidavit described. The paper writing intended to be referred to in the indictment was well known to the defendant and he made no objection to its admission in evidence. The defendant had not moved for particulars but, at the close of the evidence, asked for rulings that there was such a variance between the allegation and the proof, or such a misdescription of the property as to require a verdict of not guilty on that count, and also contended that the difference between the allegation and the proof was not merely a variance or a misdescription, but that the indictment contained an accurate description of property not in fact received and that the difficulty was not cured by G.L.c. 277, Section 35. Held, that

(1) The statute referred to, G.L.c. 277, is remedial and should be construed with reasonable liberality and so as to give effect to all its provisions;

(2) No confusion, surprise nor inability to make a proper defence appeared;

(3) The gist of the accusation was the theft of a paper on which the copy of an affidavit appeared, and the question whether that paper had upon it an original instrument or a copy thereof did not go to the substance of the charge: the defendants were not prejudiced in their defence;

(4) The offence was correctly set forth in its essential particulars; no substitution of offences was caused;

(5) The ruling asked for properly was refused.

In the closing argument of the government's counsel at the trial of the indictment above described, were passages which were wholly unjustifiable and most prejudicial in character. During the argument, the defendant's counsel called attention of the judge thereto and asked whether the argument should be interrupted. The judge answered in the negative, assuring the defendant's counsel that lie 11 would look out for the defendants' rights," which led the defendant's counsel "not to interrupt in the course of the argument." The government's counsel was not aware for many days after the trial that the defendant's counsel had objected to the argument while it was being made. At the close of the arguments, the defendant's counsel with particularity called attention to the objectionable character of the argument, stating that, if the judge thought the case nevertheless should go to the jury, the defendant desired "an exception in each instance." The judge's charge, while dealing with the subject, did so inadequately. At the close of the charge the defendant saved "an exception to letting the case go to the jury in view of the prejudicial argument made for the Commonwealth."

Held, that (1) The defendant objected seasonably to the character of the argument of the Commonwealth;

(2) Neither the fact that the Commonwealth's attorney did not know of the defendant's objection during the argument, nor the fact that the defendant's attorney did not interrupt, palliated, extenuated or excused the conduct of the Commonwealth's attorney;

(3) While the judge might well have directed a discontinuance of the objectionable line of argument, he was not obliged to pursue this course, which, undoubtedly, is ordinarily the wiser one;

(4) Having permitted the argument to continue, it was the duty of the judge to emphasize the fact that the argument had been grossly improper; to point out in plain, unmistakable language the particulars in which it was unwarranted and to instruct the jury to cast aside in their deliberations the improper considerations that had been presented to them, using such clear and cogent language as would correct the obviously harmful effect of the argument;

(5) Up to the end of the charge no error in law had arisen because of the argument and, to protect his rights, the defendant at the close of the charge should have saved an exception to the failure of the judge adequately to deal with the improper conduct of the government's counsel;

(6) The exception saved at the close of the arguments was anticipatory only and was not sufficient;

(7) The exception at the end of the charge "to letting the case go to the jury in view of the prejudicial argument made for the

Commonwealth," was not an exception to the inadequate character of the charge;

(8) The defendant having failed to call to the attention of the judge at the end of the charge errors and omissions therein in this respect, and to save an exception then because of such errors and omissions, there was no error entitling him to a new trial as a matter of law.

A bill of exceptions setting forth an exception saved to a ruling by a judge other than the judge who allowed the bill does not properly bring the subject matter thereof before this court.

An indictment for conspiracy to steal and an indictment including counts for larceny and for buying, receiving and aiding in the concealment of goods known to be stolen were tried together. At the close of the evidence, a verdict of acquittal on the ground of variance was ordered and returned as to the indictment for conspiracy....