Commonwealth v. Knight

• Decision Date: 22 November 1926
• Citation: 257 Mass. 421,154 N.E. 91
• Parties: COMMONWEALTH v. KNIGHT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 421

154 N.E. 91

COMMONWEALTH

v.KNIGHT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 22, 1926.

Exceptions from Superior Court, Suffolk County; James H. Sisk, Judge.

Fred W. Knight and others were convicted of conspiracy to commit larceny by false pretenses, and they except. Exceptions overruled.J. J. Leonard, Asst. Dist. Atty., of Boston, for the commonwealth.

J. W. Vaughan, of Boston, for defendants.

CARROLL, J.

The defendants, Knight, Membrino and Oakman, were found guilty of conspiracy upon several counts of an indictment numbered 2152. On indictmentsnumbered 2150, 2153, 2154, 2155, 2156 and 2157, verdicts of not guilty were returned by order of the court. The motion of the defendants for a bill of particulars was complied with.

[1] The defendants' first exception relates to the testimony of Police Inspector Towle. He testified that he visited the defendants' office and saw the defendants; that in the course of a conversation with the defendant Oakman, the latter gave him a ‘questionnaire’ (Exhibit 2), and that he was told by Oakman that the questionnaire would explain ‘the business of the trust.’ The exhibit was then offered, the defendants excepting on the ground that there was no evidence that Towle was defrauded. The evidence was competent. The jury could have found that the so-called questionnaire was made use of by the defendants as a part of the fraudulent and unlawful scheme in which it was alleged the defendants were engaged. Commonwealth v. Riches, 219 Mass. 433, 439, 107 N. E. 371.

[2] The next exception is to the testimony of one Deitrich, a customer of the defendants, who testified to a conversation with Oakman which took place after Deitrich had paid the money called for by his contract. It had reference to a house to be built for him by the defendants, Deitrich saying, ‘I am going to put my coal in,’ and Oakman replying, ‘Your house will be all done, don't put your coal in, you will have to move it.’ Deitrich testified: ‘He convinced me he was going to build the house by October, by November at the latest.’ The defendant contends that the bill of particulars alleges a conspiracy to commit larceny by false representations, and that therefore statements made after money had been paid would be ‘no part of the conspiracy to commit larceny by means of the false pretenses.’ It is difficult to see how the defendants were in any way prejudiced by this evidence; but, assuming they were prejudiced, the evidence could not be excluded, because it had reference to what took place after the witness had parted with his funds. The admissions of the defendants at that time might tend to prove the conspiracy alleged in the indictment.

Exceptions 37 and 38 are overruled. What has already been said concerning exception 1 applies to these exceptions.

[3] A witness for the commonwealth was asked in redirect examination if there had been any talk between him and any one of the defendants with reference to this mortgage. There was no answer to this question. The witness was then asked, ‘Who was it with?’ He replied, ‘Mr. Oakman and Mr. Knight.’ To this evidence the defendant excepted. There is no merit in this exception. The fact that the witness talked with the defendants was admissible.

[4] Exception 5 concerns testimony of a witness who was allowed to state that the mortgage given to the defendants was not to ‘be used for anything outside of my property.’ The question did not call for the contents of a certain instrument. The evidence was admissible, and the same reason applies to exception No. 6.

Many of the exceptions were to the allowance of questions which the defendants contend were leading. There is nothing in the record to show an abuse of the court's discretion in allowing the commonwealth to put leading questions to its own witnesses. Commonwealth v. Campopiano, 254 Mass. 560, 150 N. E. 844;Commonwealth v. Carver, 224 Mass. 42, 45, 112 N. E. 481;Moody v. Rowell, 17 Pick. 490, 498,28 Am. Dec. 317.

As we understand the eleventh exception, the defendants excepted to a certain conversation of a witness with one of the defendants, on the ground that the time of the conversation was not fixed. The witness stated that the conversation took place in the month of January, about the time of the first payment. This fixed the time with sufficient definiteness to overcome the objection of the defendants.

[7] The next exception is to the testimony of a witness who stated he had paid a certain sum to the holders of the construction mortgage. On this record we cannot say that this evidence was incompetent. A witness testified that he had paid $200 to the receiver of the...