Commonwealth v. Glassman

• Decision Date: 01 June 1925
• Citation: 147 N.E. 833,253 Mass. 65
• Parties: COMMONWEALTH v. GLASSMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 65

147 N.E. 833

COMMONWEALTH

v.GLASSMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

June 1, 1925.

Exceptions from Municipal Criminal Court, Suffolk County; C. A. Flynn, Judge.

James M. Glassman was convicted of keeping a bucket shop and of larceny, and he excepts. Exceptions overruled.

G. Alpert, Asst. Dist. Atty., of Boston, for the Commonwealth.

L. R. Eyges, of Boston (H. N. Nayor, of Boston, and B. Levin, of Roxbury, on the brief), for defendant.

PIERCE, J.

On the complaint of one Milo N. Comstock, the defendant, a stockbroker doing business as James M. Glassman & Company, on August 7, 1923, was brought before the municipal court of the city of Boston on two complaints, one for keeping a bucket shop in violation of G. L. c. 271, § 36, and the other in seven counts for the larceny of divers sums of money between April 10 and May 24, 1923, the property of the complainant. After trial and conviction upon each complaint the defendant appealed to the superior court. At the trial in the superior court counsel for the defendant agreed that the several counts in the complaintfor larceny might be treated as one count, and the jury return a general verdict of guilty or not guilty on the whole case without passing upon each count; and this was done.

[1] The request for a ruling that the defendant was entitled to a verdict of acquittal on the complaints of larceny, on the ground of a material variance in the dates set forth in the complaint and the proof adduced at the trial, was denied rightly. Time was not an essential element of the offense charged in any one of the seven counts of the complaint, and it was not required to be proved as alleged. Commonwealth v. Peretz, 212 Mass. 253, 98 N. E. 1054, Ann. Cas. 1913D, 484.

The judge could not have ruled rightly, as requested (1) that ‘upon all the evidence the defendant is entitled to a verdict of acquittal upon all the complaints of larceny,’ or (2) that ‘upon all the evidence the defendant is entitled to a verdict of acquittal upon the complaint of ‘keeping a bucket shop’ as set forth in section 35 of chapter 271 of the General Laws of Massachusetts.'

The evidence warranted the following findings of fact: In March, 1923, the defendant was in business in Boston as a stockbroker. The complainant, Comstock, after a discussion with the defendant, gave him $500 to purchase on a ‘margin basis' one hundred shares of Mexican Seaboard stock, the $500 being required by the defendant ‘for his buying and the holding of it’ and the balance of the money was to remain on interest. Later, Comstock purchased fifty more shares of Mexican Seaboard stock, giving the defendant $500 on account and receiving a receipt dated March 15, 1923. On the same day he ordered another one hundred shares of Mexican Seaboard, and gave a check, and later received a receipt or confirmation stating in substance that the defendant had bought on the Comstock ‘account and risk 100 shares of Mexican C. from O'Mealey at $17 1/4’ per share. Similar orders were given by Comstock to the defendant for other stocks, and with each order of purchase similar margin deposits were made and similar letters or receipts in confirmation were delivered by the defendant to Comstock, and each stated that the stock bought for Comstock was bought from O'Mealey. The stock market suffered a sharp decline during the period covered by these transactions, and on May 22, in consequence of a statement of the defendant to the effect that the account was ‘under water,’ and his demand for additional margin, Comstock gave the defendant as additional collateral a mortgage note of $1,300 and received a receipt therefor. On May 22, the market having further declined, Comstock gave the defendant the mortgage note, a check for $950, and $50 in cash in consequence of a letter from the defendant stating:

‘Your account is in need of $1,000 additional margin besides the mortgage which you have left for discount. The account at one time to-day was over $500 under water, and we are not in a position to carry the stock for you unless we have the necessary margin to do it with, consequently it will be absolutely necessary that you give this matter your immediate attention.’

In June, one Pennycuick had a conversation with the defendant in reference to an alleged delay of Comstock in putting up the further margin demanded by the defendant, and Pennycuick then said, ‘Mr. Comstock has always put up his money like a man and I think he will now’; to this the defendant replied, ‘You boob and you _____ fool; you think if I bought the stocks I could have carried them without a man putting up his money, in a market like this?’ To this Pennycuick said, ‘You haven't bought the stocks?’ and the defendant replied, ‘No.’ Pennycuick then said to the defendant, ‘That is just what I want you to admit; give Mr. Comstock back his money.’ The defendant laughed. Shortly after, Pennycuick went away and came back with Comstock and handed the defendant a letter signed by Comstock, in demand of his money and of the mortgage note. This letter was dated June 6, 1923, but was not delivered until June 29, 1923. In reply, the defendant on June 29, 1923, sent Comstock the letter which follows:

‘We are in receipt of your communication dated June 6, and delivered by Mr. Pennycuick at 4:30 o'clock Friday, June 29, 1923. We are surprised at the nature of the contents, and in reply we desire to say we are prepared to deliver the securities on payment of balance due. If you will arrange to have your bank take it up, same will be delivered to them upon confirmment of the receipt of such instructions from you.’

Subsequently, Comstock and Pennycuick went to the office of the defendant and Comstock, in substance, demanded that the defendant should give him the money he had paid or deliver to him three hundred and twenty-five shares of Mexican Seaboard stock and he (Comstock) would say nothing further. The defendant wanted Comstock to let him go ahead and carry the stock. Comstock said, ‘You...