Commonwealth v. Clune

• Decision Date: 18 October 1894
• Citation: 162 Mass. 206,38 N.E. 435
• Parties: COMMONWEALTH v. CLUNE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 206

38 N.E. 435

COMMONWEALTH v. CLUNE.

Supreme Judicial Court of Massachusetts, Hampden.

October 18, 1894

COUNSEL

C.L. Gardner, Dist. Atty., for the Commonwealth.

William H. Brooks, for defendant.

OPINION

ALLEN J.

The plea in abatement was not well founded. It was not necessary for the grand jury to examine the witnesses anew before finding the second indictment, and the fact that some of the grand jurors who found the original indictment were absent when the second indictment was found, and that others were present when the second indictment was formal who were absent on the former occasion, did not render the indictment invalid. Com. v. Woods, 10 Gray, 477; Com. v. Woodward, 157 Mass. 516, 32 N.E. 939.

The court correctly stated the rule of law as to the grounds upon which the defendant could be convicted as principal. But the defendant contends that the evidence was insufficient to show that he was present aiding and abetting Malley in uttering the check. We have some difficulty in fixing the position of the parties during the transaction, partly because the testimony is not precise, and partly because the plan referred to in the bill of exceptions has not been laid before us. The testimony, however, tended to show that the defendant prepared the forged check or order, and delivered it to Malley on the street, asking the latter to get a messenger boy to take it to the bank, and to get the same cashed; that Malley walked up the street till he found a boy and then down the street till he was nearly opposite the bank, when Malley sent the boy for the money; that it was obtained, and Malley received it from the boy, went into a drug store, and got a bill changed, and paid the boy 25 cents, and, when he came out of the drug store, the defendant was coming across the street to where Malley was, and asked him if he had got the money, and received it from him, less the 25 cents. From this it might be inferred that the defendant, though not seen by the boy or by Malley nevertheless may have kept them both in sight, and have remained near enough to be of aid to Malley in receiving the money promptly from him, or otherwise, as occasion might require. The case was properly submitted to the jury, to determine upon the evidence whether the defendant was in a situation where he might actually aid Malley. Com. v Lucas, 2 Allen, 170; Com. v. Wallace, 108 Mass. 2; Com. v. Knapp, 9 Pick. 496,...