Commonwealth v. King

• Citation: 202 Mass. 379,88 N.E. 454
• Parties: COMMONWEALTH v. KING.
• Decision Date: 24 May 1909
• Court: United States State Supreme Judicial Court of Massachusetts

202 Mass. 379

88 N.E. 454

COMMONWEALTH v. KING.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1909

COUNSEL

Michael J. Dwyer, Asst. Dist. Atty., for the Commonwealth.

Herbert Parker, Jesse Gove, and Herbert L. Baker, for defendant.

OPINION

SHELDON J.

The first question presented in this case is whether there was any error in law in the action of the superior court in denying the defendant's motion that further specifications be furnished by the commonwealth, and that the specifications which upon his previous request had been already filed, should be expunged and discharged from the record. The defendant had been indicted in 31 counts apparently for as many separate larcenies. He had filed a motion asking for a statement of particulars as to the nature and ground of each of the several crimes charged against him, as to the means by which the said crimes were claimed to have been committed, and as to the exact nature of the property referred to and described in each count. He also in the same motion 'required and requested more specific particulars and recitals' in each of the counts 'as to the specific crime' which he was alleged to have committed, and asked that the commonwealth be required to set forth the specific crime charged in each count, 'whereby it shall be made to appear and the defendant shall be apprised whether the commonwealth so in each count of said indictment has specifically charged and alleged the crime of embezzlement, or obtaining money by criminal or false pretenses, or larceny.' The district attorney thereupon, without any formal order of the court, filed specifications, stating in substance that the commonwealth specified that the defendant did 'embezzle and fraudulently convert to his own use' certain described money and property, which had been delivered by the person named upon the trust and confidence that it should be used by the defendant in the manners specifically stated; and further, that the defendant had obtained a check and order for money from the same person by means of certain 'false and fraudulent representations' set forth in detail; and further that the defendant 'did feloniously steal, take and carry away' certain money and other property named; and further, as to some only of the counts, that the defendant, being a broker engaged in the business of buying and selling stocks, bonds, and securities and having been intrusted by the person named with certain money, with directions in writing to invest said money in certain named stocks for and in behalf and in the name of that person, did in violation of good faith and contrary to the terms of such direction, 'embezzle and fraudulently convert to his own use' said money. That is, the commonwealth, besides giving sufficiently full information about all matters of fact as to which the defendant desired information, also notified him, in answer to his request that he be informed as to the crime which he was alleged to have committed, that as to each and all of the counts it claimed a conviction on the ground that he had committed each one of what he contends are the three distinct crimes of larceny, of embezzlement, and of obtaining money through criminal false pretenses, and (as to some of the counts) the fourth crime of the statutory embezzlement described in Rev. Laws, c. 208, § 47.

It would be a sufficient answer to the claims of the defendant upon this question to say that he did not suffer by the refusal of the court to order further specifications or to expunge those which had been already filed. There is no claim that he was denied any information which he had a right to require. His complaint is rather that the commonwealth gave him warning that it would make a claim which it would have (as he contends) no right to make, i. e., that it would ask for a conviction as to each count for a single larceny upon proof of larceny proper, of embezzlement, of obtaining money by criminal false pretenses, or, as to some of the counts, of the particular crime of embezzlement or fraudulent conversion by a broker. He suffered no injury by being notified in advance of this claim of the commonwealth, whether the claim was or was not well founded. It is to be observed also that the bill of particulars for which a defendant is allowed by the last sentence of Rev. Laws, c. 218, § 39, to ask is not one which he may require as of right. The first sentence of that section does give him an absolute right to require 'a statement of such particulars as may be necessary' to give him 'reasonable knowledge of the nature and grounds of the crime charged,' if that charge would not be otherwise 'fully, plainly, substantially and formally set out.' Com. v. Snell, 189 Mass. 12, 19, 75 N.E. 75, 3 L. R. A. (N. S.) 1019; Com. v. Sinclair, 195 Mass. 100, 80 N.E. 799; Com. v. Bailey, 199 Mass. 583, 585, 85 N.E. 857. Except as modified by this provision it still is, as it formerly was, in the discretion of the court to say whether any and what bill of particulars shall be furnished to him. Com. v. Wood, 4 Gray, 11; Com. v. Giles, 1 Gray, 466, 469. The change from 'shall' to 'may' in the statute cannot be treated as without significance, however either word might be construed if it stood alone. See Cheney v. Coughlin, 39 B. & T. 614. There is no ground for saying that these specifications did not give the defendant full knowledge 'of the nature and grounds of the crime charged' against him; and the court was not bound to expunge at his request any part of those specifications, or to require new or further particulars or specifications to be furnished to him. But the questions which the defendant has sought to raise upon this branch of the case are all open and will be considered upon the exceptions which he saved at the trial. The exceptions to the order of the court denying and overruling this motion of the defendant must be overruled, and the order appealed from must be affirmed.

The motion to quash the indictment could not have been sustained. So far as the several counts thereof vary from the statutory form set forth in the schedule appended to Rev. Laws, c. 218, it is only by giving further information to the defendant. Each one of them contains a full, formal and complete charge of larceny. Neither one of them contains anything more, or charges the defendant with having committed any other crime. Whether a conviction could be had under such counts by proof of anything else than a technical larceny at common law, or whether evidence offered under them tending to show a larceny prohibited by our statutes would be made incompetent by the fact that it might tend to show also the commission by the defendant of any other crime, were questions which might in any case, as they did in this case, arise at the trial, and would then have to be passed upon; but the fact that such questions might arise furnished no ground for quashing the indictment. Whether or not the commonwealth could at the trial claim a general verdict of guilty, on each count on whichever one of three or four different contentions the jury might find to have been proved with the requisite degree of certainty, yet each count did contain a proper charge of larceny in any one of its forms. Com. v. Kelley, 184 Mass. 320, 68 N.E. 346. As was said by Hammond, J., in the case last cited, the word 'steal' has become 'a term of art, and includes the criminal taking or conversion' by way either of larceny, embezzlement or obtaining by false pretenses. The exceptions to the order of the court denying the defendant's motion to quash the indictment must be overruled and the order must be affirmed. Com. v. Bailey, 199 Mass. 583, 85 N.E. 857; Com. v. Sinclair, 195 Mass. 100, 105, 80 N.E. 799.

The defendant's exception to the exclusion by the court of his statements to the witness Gilmore as to how much the defendant had paid to other creditors with whom he had settled, or as to how he was dealing with other creditors, has not been specifically argued. We see no error in this ruling. The defendant's counsel in his able argument has not claimed that this evidence was competent.

The defendant did not put in any evidence, but at the close of the commonwealth's case asked the court to require the commonwealth to elect 'which of the three or four specific statute or common-law offenses alleged to be embodied in each count [was] the crime of offense' upon which it claimed a verdict. But the judge refused to do this and ruled that the crime of larceny could be committed in different ways, viz., by embezzlement, by obtaining money by false pretenses, and also by the taking and carrying away of personal property by trespass out of the possession of the owner, that is by larceny at common law; and that the defendant could be convicted upon each count if it was satisfactorily proved as to that count that he had committed the crime of larceny therein charged, whether he had committed it in one or another of these different modes. And the jury were not in terms forbidden to convict upon some of the counts upon which a verdict of guilty was returned, upon proof that the defendant, being a broker engaged in the business of buying and selling stocks, bonds and securities, and having been intrusted by the persons named in those respective counts with money, with the direction in writing to invest the same in the stocks or securities named for and in the names of those persons, did in violation of good faith and contrary to the terms of the direction, embezzle and fraudulently convert to his own use such money. That is, as to these counts, so far as has yet appeared, the jury may have convicted the defendant of larceny upon proof of the peculiar kind of embezzlement described in Rev. Laws, c. 208, § 47,...