Commonwealth v. Levine
| Decision Date | 30 June 1932 |
| Citation | 280 Mass. 83 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | COMMONWEALTH v. MYER J. LEVINE & another. |
May 13, 1932.
Present: CROSBY PIERCE, WAIT, FIELD, & DONAHUE, JJ.
Larceny, By false pretence, Conspiracy. Evidence, Competency, Secondary Hearsay, Of bank account. Witness, Refreshment of recollection. Practice, Criminal, Exceptions.
At the hearing together by a judge without a jury of indictments charging two defendants with larceny and conspiracy to steal, there was evidence that one of the defendants was the treasurer of a corporation, the bank account of which was kept in his name; that the other defendant ordered certain quantities of white lead and linseed oil of a dealer in such goods, leading the dealer's salesman to believe that the goods were being purchased by the corporation for immediate use in reconditioning its buildings; that the goods were shipped by the dealer and arrived at a wharf within the time specified by the second defendant; that the freight was paid by a check of the first defendant; that none of the goods were used on the buildings of the corporation, but within a few days after delivery at the wharf were sold to various purchasers at prices slightly less than the purchase prices fixed by the dealer, delivery to such purchasers being made by truck either directly from the wharf or from the premises of the corporation, to which some of the goods had been taken from the wharf; that checks of the purchasers in payment were deposited in the account of the first defendant; that invoices from the dealer, bills to purchasers and checks from purchasers were entered on the books of the corporation where the first defendant, as its treasurer, could have discovered them; that, when questioned as to the transaction by a director of the corporation, the first defendant gave an equivocal answer; and that the dealer was not paid for the goods. Held, that
(1) The evidence as to what was done with the lead and oil after their delivery by the dealer was competent in the circumstances because it had some tendency to show a single scheme and an intent from the beginning to obtain the goods from the dealer by false pretences: the evidence was not incompetent because it also admitted of an explanation consistent with innocence;
(2) A witness having testified that he received a check for the freight bearing the name of the first defendant, and the defendants having failed to produce the check upon call by the district attorney, there was no error in permitting the witness to describe the check;
(3) Although the testimony as to such check would not support a finding that the first defendant signed the check, the testimony was relevant in the circumstances with relation to the alleged contract of sale by the dealer;
(4) The trial judge having admitted testimony that the second defendant believed what he told the dealer's salesman to be true, there was no error in the exclusion of testimony by that defendant to show the grounds of his belief, such testimony excluded having relation to newspaper articles which that defendant had read and to statements made to him by others;
(5) A finding was warranted that there was no bona fide purchase of the goods from the dealer by the corporation, but that the defendants were the real purchasers under the guise of the corporation and obtained a title to the goods by false pretences;
(6) G.L.c. 266 Section 35, did not aid the defendants in the circumstances;
(7) The evidence warranted findings that both defendants were guilty on each indictment.
There was no merit in an exception, saved by the defendant at the trial of an indictment, to the admission of evidence which did not result in his prejudice.
Where, at the trial of an indictment against several defendants, evidence was admitted only against one of them, who was acquitted, an exception to the admission of such evidence by other defendants who were found guilty must be overruled.
At the trial of an indictment, evidence of deposits in and withdrawals from a certain bank account was relevant to the issues raised. The head bookkeeper of the bank testified that he had custody of its books of account and that deposits and withdrawals were entered under his supervision and that, as part of his duty, he personally supervised such account and the checks drawn against it; that he had no personal knowledge of certain entries in the account, which were made by another clerk; and that he participated in preparing a transcript of the account by reading off the entries from the ledger to a clerk who set them down.
Refreshing his recollection from the transcript, he was permitted to testify of his own knowledge as to deposits in and withdrawals from the account. The transcript was excluded by the trial judge. Held, that there was no error in the admission of the witness's testimony as to the deposits and withdrawals.
An exception at the trial of an indictment, to the exclusion of testimony which later is admitted, must be overruled.
TWO INDICTMENTS, found and returned on June 4, 1930, and described in the opinion, against David Remick, Francis P. McIntyre, Myer J. Levine and Samuel Bolusky.
The defendants having waived a trial by jury, the indictments were heard together in the Superior Court by T.J. Hammond, J. Material evidence is stated in the opinion. The defendants Remick and McIntyre were found not guilty. The defendants Levine and Bolusky were found guilty and alleged exceptions.
The case was argued at a sitting of this court on May 13, 1932, before Wait, Sanderson, Field, & Donahue, JJ., and after the death of Sanderson, J., was submitted on briefs to Crosby & Pierce, JJ.
J.C. Johnston, for the defendants. F.E. Smith, Assistant District Attorney, for the Commonwealth.
The defendants Bolusky and Levine were indicted with one Remick and one McIntyre in two counts charging that they "did steal a quantity of white lead and linseed oil of the value of more than one hundred dollars of the property of the National Lead Company." In another indictment the same men were charged in a single count, that they "did conspire together to steal" the same property. Trial by jury was waived. The cases were tried together. The judge found Remick and McIntyre not guilty, but both Bolusky and Levine guilty on the second count of the first indictment and upon the second indictment. The cases are before us upon exceptions to refusals to find Bolusky and Levine not guilty to refusals to rule as requested; and to certain rulings in the admission and exclusion of evidence.
The Commonwealth specified, orally, that it relied upon, as facts, that the defendants represented that certain buildings and the real estate on which they stood were owned by the Massachusetts Thread Mills, Inc., and that the white lead and oil, the subject matter of the larceny, were to be used in painting the buildings so alleged to be owned; and further that the contract between the Massachusetts Thread Mills, Inc., and the National Lead Company made through Bolusky was not a bona fide contract but was part of a general plan and scheme of the defendants to obtain the goods without paying for them.
It was agreed that the Massachusetts Thread Mills, Inc., and the National Lead Company were corporations duly organized, the former under the laws of this Commonwealth, the latter under the laws of New Jersey; that the goods in question were obtained through the office or agent of the National Lead Company located in New York City. They had not been paid for, and none of them was used in painting by the Massachusetts Thread Mills, Inc.
There was evidence that in consequence of an order given at Boston by Bolusky to a salesman of the National Lead Company, that company shipped three hundred and sixty kegs of white lead and thirty-two drums of linseed oil from New York consigned to the Massachusetts Thread Mills, Inc., at Fall River, where truckmen, after paying the freight, took it away. Lischner, for the Commonwealth, testified that he was engaged in the trucking business at Fall River and knew the defendants. He called at the wharf in Fall River and found in his box a notice relating to the consignment. He had done business for the Massachusetts Thread Mills, Inc. Bolusky spoke by telephone to him, but he went to the wharf because told by his bookkeeper that the Massachusetts Thread Mills, Inc. called him up. He paid the freight before delivery of the goods. His men took two loads to a barn on premises used by the Massachusetts Thread Mills, Inc. He personally delivered one keg at the office of the Massachusetts Thread Mills, Inc., which he "left . . . on the top of the stairs and hollered: `There is a keg.'" He heard someone say "All right," but saw no one, and went away at once. He called up one Fitton, who did out of town trucking for him. Subsequently he received a check from the Massachusetts Thread Mills, Inc., for services and expenses; but did not know whose check it was, nor who was present when he got it.
The judge admitted questions designed to bring out that the witness had at some time said that the check was Levine's personal check, and that Remick, Bolusky and Levine were present when he received it. The witness denied so doing. There is no merit in the exception claimed to the ruling admitting the questions and answers. No prejudice resulted. Fitton testified that he received a telephone call from Lischner's office to send as many trucks as he could to the wharf. He sent two which loaded thirty-two drums of linseed oil. Against objection and exception he was permitted to testify that he had a conversation by telephone with Remick. This was admitted against Remick alone. As he was acquitted, these defendants...
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