Commonwealth v. Leland

• Decision Date: 25 May 1942
• Citation: 42 N.E.2d 249,311 Mass. 447
• Parties: COMMONWEALTH v. LELAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 447

42 N.E.2d 249

COMMONWEALTH

v.LELAND.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1942.

Hazel Leland was convicted of stealing money, and she appeals.

Judgment affirmed.Appeal from Superior Court, Suffolk County; Higgins, Judge.

Before FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

J. C. Johnston, of Boston, for defendant.

E. M. Sullivan, Asst. Dist. Atty., of Boston, for the Commonwealth.

COX, Justice.

One count in the indictment against the defendant charges her with stealing money belonging to one Eunice P. Blair. The defendant waived her right to a trial by jury, and the trial proceeded before the Chief Justice of the Superior Court, subject to the provisions of G.L. (Ter.Ed.) c. 278, §§ 33A-33G, inclusive. The defendant was found guilty on this count, and not guilty on the two other counts in the indictment. We consider the assignments of error of the defendant that have been argued.

One assignment is to the denial of the request that upon all the evidence the defendant is entitled to a finding of not guilty. Under the indictment, the defendant could be found guilty of larceny at common law, of larceny by a false pretence, or of embezzlement, G.L. (Ter.Ed.) c. 266, § 36, depending upon the state of the evidence. Commonwealth v. Kelley, 184 Mass. 320, 324, 68 N.E. 346;Commonwealth v. King, 202 Mass. 379, 387-389, 88 N.E. 454.

There was evidence that the complainant, Mrs. Blair, first met the defendant in February, 1938, when she was brought to Mrs. Blair's house by a Mrs. Wheeler, a friend of Mrs. Blair. On that occasion Mrs. Wheeler said that the defendant had a very large account with a brokerage concern in Boston and that she had invested a great deal of money with her; that the defendant had had phenomenal success in the stock market over a period of years, and she asked Mrs. Blair why she did not give the defendant some money to invest for her in the stock market. The defendant asked Mrs. Blair if she would like to invest some money with her and said that she had a very large account with the brokerage concern that had been named by Mrs. Wheeler. Nothing was decided upon at this time. In March, Mrs. Blair received a letter from the defendant in which the latter ‘recalled’ that she had suggested that Mrs. Blair give her some money to invest for her in the stock market, and asked that she destory the letter because the defendant was not a broker and had no right to invest for her, but that she was going to do it in a friendly way. Thereafter, the defendant called Mrs. Blair on the telephone once or twice and asked her if she had decided to give her money to invest for her, and Mrs. Blair told her that she had not.

In April, 1938, Mrs. Wheeler, Mrs. Blair and the defendant met again and the defendant asked Mrs. Blair if she was ready to give ‘her the money to invest for * * * [Mrs. Blair]’ and suggested $1,200, saying that Mrs. Blair could get a loan at the bank. Mrs. Blair told her that she would get the loan and the defendant said she was very glad of this because she knew she could get money for her; that she could make money for her. The defendant said that she had a ‘very, very large account’ and that all her stocks were ‘high-grade * * * American Telephone & Telegraph; American Tobacco; Eastman Kodak; United States Steel.’ Mrs. Blair went to the bank and obtained a loan of $1,200, the proceeds of which were $1,183.50, and returned to the defendant, who then told her that she would never regret giving her the money ‘for investment,’ and that during her absence she had called up the brokerage concern and ordered fifty shares of United States Steel, adding, ‘So we are already started * * * in this investment plan.’ She also said that she was going to buy sixteen shares of Eastman Kodak stock for Mrs. Blair; that the brokerage concern had given her a desk in their office because her account was so large; that she was going to invest in ‘gilt-edged’ securities and was going to deliver them to her; and that this was a friendly transaction because she was not a broker and had ‘no right to take money to invest.’ Mrs. Blair gave the defendant the check that she had received from the bank, and the defendant signed and gave her the following writing: ‘April 27, 1938. Received of Eunice Blair twelve hundred dollars to be used in stock market. I agree to pay back 1200 plus 16 shares Eastman Kodak. Final transaction completed Monday, June 6th, 1938, and transfers made and account closed. This was a friendly transaction.’ On June 21, 1938, the defendant signed and gave Mrs. Blair the following writing: ‘Received of Mrs. Blair, $45, toward transfer and taxes on securities. (Signed) Helen Leland. June 21, 1938.’ Mrs. Blair never received any stocks of any kind from or through the defendant, and up to June 6, 1938, she received no money from her.

Sometime in May the defendant told Mrs. Blair that she was getting along ‘fine’ with Mrs. Blair's account. In June, 1939, Mrs. Blair and her daughter met the defendant,and Mrs. Blair told her that she had found out that the defendant had been ‘blacklisted’ in all brokerage houses in Boston. The defendant said that this was not true; Mrs. Blair told her that it had been a long time since she had promised her the stock and asked where it was, and the defendant replied: ‘It is coming, but I have been held up, one thing after another has happened, but you are surely going to get it, but things have been slow.’ In August, 1940, Mrs. Blair telephoned the defendant that she wanted her to come to her home as she wished to talk with her, whereupon the defendant said: ‘You won't have anyone there, will you?’ and Mrs. Blair said: ‘Oh, no.’ Mrs. Blair told the defendant that she had waited a long time for the stock and that she had decided that, if the stocks were not delivered to her, she was going to the district attorney. The defendant seemed very much perturbed and said: ‘Please don't do that. * * * You don't know what it feels like to walk down the street expecting any moment to have some one touch you on the shoulder. * * * If you will give me * * * a little more time, I will have your stock.’ Mrs. Blair went to the police in December, 1940. In the meantime the defendant had given her $30, and, thereafter, $72.50.

On cross-examination Mrs. Blair testified that on April 27, 1938, when the three women were at lunch, she had practically made up her mind ot let the defendant have the money as soon as she found out how much it would take; that she had decided to wait until she had talked with her and that when the defendant mentioned $1,200, she then decided to let her have the money; that she asked the defendant what she was going to invest in and was told that she always invested in ‘high-grade’ stocks and was going to get her sixteen shares of Eastman Kodak; that she was going to buy and sell stock in the meantime; that she was a ‘trader’; and that she was to deliver these sixteen shares of Eastman Kodak stock on June 6; that the writing that the defendant gave her stated her agreement with the defendant; that she understood that the defendant gave her this ‘memorandum’ acknowledging $1,200 and that she was going to return that and sixteen shares of Eastman Kodak stock by June 6; that she was going to get the shares with the money and with buying and selling stock; and that the money was to be used by the defendant in trading back and forth in the market.

There was other evidence that in June, 1939, the defendant stated in Mrs. Blair's presence that she was trading for her and investing money for her in stocks, and that the stocks ‘would be on their way’; that eventually all the stock would come through to her satisfaction, and that the stock was coming.

There was other evidence that in June, 1941, after Mrs. Blair had seen the police, the defendant telephoned to one of the probation officers in Boston and stated that she had been making ‘restitution’ to the two people involved, including Mrs. Blair. The defendant was interviewed by the police in December, 1940, to whom she stated that she never received $1,183.50 from Mrs. Blair; that she was not in the stock ‘business' and had not bought or sold stock since 1933; and that she was not supposed to buy and stock and never received the money. When asked about another transaction with Mrs. Blair involving $200, she said that that was a loan. When asked what she would say if she was shown the receipt of writing of April 27, 1938, she said: ‘Have you got that?’ When informed that they had, she added: ‘I won't answer any more questions.’ At the close of the interview she was asked if she was positive that she did not receive $1,183 from Mrs. Blair and said: ‘I am positive.’ When asked again about the receipt, she added: ‘I have nothing more to say.’

In this state of the evidence we are of opinion that there was no error in the denial of the request that upon all the evidence the defendant is entitled to a finding of not guilty. It is to be observed that in the consideration of this assignment of error this court is not concerned with the specific aspect of the crime of larceny of which the defendant was found guilty. On the contrary, the request presents the question whether the defendant could be found guilty at all. It could have been found that the transaction, in so far as the defendant was concerned, was a fraud from start to finish. In fact,...