Commonwealth v. Coshnear
| Decision Date | 06 March 1935 |
| Citation | 289 Mass. 516,194 N.E. 900 |
| Parties | COMMONWEALTH v. COSHNEAR et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Exceptions from Superior Court, Middlesex County; Hammond, Judge.
Harry R. Coshnear and Samuel Coshnear were convicted of conspiracy to steal, and they bring exceptions.
Exceptions overruled.
F. A. Crafts, Asst. Dist. Atty., of East Cambridge, for the commonwealth.
E. M. Dangel, L. E. Sherry, and E. F. Connelly, all of Boston, for defendants.
These exceptions are prosecuted by the defendants Harry R. Coshnear and Samuel Coshnear. They will be referred to as the defendants. The third excepting defendant, one Mabey, waived his rights under the exceptions. The case against him need not be considered.
The defendants with others were charged in one indictment with having conspired together to commit the crime of defrauding persons, members of the general public, unknown to the defendants at the time of such conspiracy. Four days after a verdict of guilty was rendered against the defendants and Mabey, that indictment was placed on file. Questions of law respecting that indictment are not before us and need not be considered. Commonwealth v. Carver, 224 Mass. 42, 44, 112 N.E. 481.
It was charged in the second indictment (hereafter spoken of as the indictment) that the defendants with others, between December 1, 1929, and December 7, 1931, ‘ did conspire together to commit thereafter from time to time and on different occasions as opportunity therefor should offer. * * * the crime of stealing the property of persons unknown’ to the defendants at the time of such conspiracy. After verdicts of guilty, the defendants were sentenced and execution of sentences was stayed.
After the defendants had pleaded not guilty and the jury had been impaneled, and after the opening in behalf of the commonwealth, each defendant presented a motion praying that the indictment be quashed and the defendant discharged on the ground that the assistant district attorney who had presented the evidence to the grand jury which returned the indictment, and who was acting in behalf of the commonwealth in the trial of the case to the petit jury, was a special justice of a district court by appointment prior to his appointment as assistant district attorney and was therefore disqualified to act. The main argument by the defendants on this point is that the holding of these two offices by one person is incompatible with article 30 of the Declaration of Rights (part 1), chapter 6, art. 2 (part 2) and article 8 of the Amendments to the Constitution, and with G. L. (Ter. Ed.) c. 12, § 27. The matters set up in the motion did not affect the jurisdiction of the court over the crime or over the defendants. Therefore, a plea to the indictment admits its genuineness. In re Lebowitch, petitioner, 235 Mass. 357, 362, 363, 126 N.E. 831; Commonwealth v. Lombardo, 271 Mass. 41, 44, 170 N.E. 813. The status of the person acting as assistant district attorney could not be assailed or tried by any proceeding to which he was not a party. Sheehan's Case, 122 Mass. 445, 23 Am.Rep. 374; Commonwealth v. Taber, 123 Mass. 253. There was no error in the denial of the motions.
At the close of the evidence the defendants attempted to raise substantially the same question by requests for rulings to the effect that the assistant district attorney was disqualified from conducting the trial, and hence a verdict of not guilty must be returned. These requests at the end of the trial came too late. Without intimating any decision on the point whether in a constitutional sense one person can hold the two offices, it is enough to say that there ‘ are few constitutional rights that may not be waived.’ Eliason v. Wilborn, 281 U.S. 457, 460, 50 S.Ct. 382, 383, 74 L.Ed. 962. The requests were not pertinent to the issues on trial and were denied rightly. Sheehan's Case, 122 Mass. 445, 23 Am.Rep. 374.
A bill of particulars to the indictment was filed to the effect that the conspiracy was to steal from members of the general public by the sale of Medford Trust Company stock by direct and indirect misrepresentations of material facts as to the market value of the stock and that there was failure to disclose the material fact that there was a restriction on the resale of such stock in that it must first be offered to the directors at its book value.
The indictment as thus narrowed by the bill of particulars set out a crime.G. L. (Ter. Ed.) c. 266, § 30. Commonwealth v. King, 202 Mass. 379, 388, 88 N.E. 454. A statement that stock is worth a specified price per share is dealers' talk, amounts only to an expression of opinion, and is not a crime. Deming v. Darling, 148 Mass. 504, 20 N.E. 107,2 L.R.A. 743; Lynch v. Murphy, 171 Mass. 307, 50 N.E. 623; Commonwealth v. Quinn, 222 Mass. 504, 512, 513, 111 N.E. 405; Gaugher v. Solomon, 279 Mass. 296, 181 N.E. 238. A representation that stock is selling for a certain price per share, or that its value in the financial market is a specified price, is a material and substantive fact. If other necessary elements are present, it may be the basis of a crime. Commonwealth v. Wood, 142 Mass. 459, 461, 8 N.E. 432. As was said in Standard Oil Company of New York v. Back Bay Hotels Garage, Inc., 285 Mass. 129, 188 N.E. 619, 620:
The outline of the evidence and the contentions of the commonwealth founded thereon were summarized in a portion of the charge, to which no exception was taken. That may be conveniently used in substance as a statement of the case. The defendant Mabey began to accumulate stock in the Medford Trust Company. The exact amounts, very considerable in the aggregate number of shares, were not in dispute. In January, 1930, one Merchant, having come into relations with Mabey in consequence of a suggestion from one of the defendants, proceeded to purchase stock in the Medford Trust Company for Mabey. The latter was already a stockholder in the Medford Trust Company and was, or had been, connected with Norton's Financial News and with the General Management Company. Broadcasts were made over the radio to the effect that the name of a particularly desirable stock was about to be released and that information could be had concerning it from Norton's Financial News or from Higgins, who was connected with it. Circulars to the same effect were distributed. Persons who acted on the suggestions thus made were directed to certain brokers, among whom were the defendants, or the concerns with whom they were connected. Those persons also received further circulars or were seen by agents. The circulars contained true statements as to the history of the Medford Trust Company respecting its dividends. Some of these circulars also contained statements relative to the market value of the stock that went beyond a matter of opinion and amounted to a representation as to a fact then existing that ‘ the stock was selling at a fair market price in the open market in the vicinity of’ one hundred twenty-five dollars per share. Some circulars gave one price and some another, but it was substantially the same. That was a statement which any of the individuals responsible for those circulars knew or should have known was not warranted and was not a true portrayal of the situation as to the market value or the fair market value of the stock as it was then being sold. There was further evidence tending to show that purchases of the stock were made by the defendants and others associated with them at less, in many instances much less, than one hundred dollars per share, and that the sales by them were at about one hundred twenty-five dollars per share. The instruction with reference to this aspect of the case was in substance that no one particular fact standing by itself constituted proof beyond a reasonable doubt of the offence charged, but that, considering all the circulars, the several sources from which they were distributed, the circumstances as to their type and character, the way and manner in which information was disseminated, the statements as to price, the conduct of the different parties, the manipulations of the stock before its ultimate sale, the records as to the transactions of one of the brokers, testimony as to transactions of the others, the connection of the defendants with the transactions and with the brokers, would warrant the inference that the parties were all acting together with one common purpose toward a definite end and co-operated and joined in a misrepresentation as to a fact then in existence, viz., market value of the stock, which they knew or should have known was not true.
The defendants' contention that there was no evidence to support a finding of false statements on their part cannot be supported. It is not necessary to traverse the somewhat extended record to demonstrate this in detail. The case against the defendants was established by the testimony of...
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