Commonwealth v. McDermott

• Decision Date: 01 June 1926
• Parties: COMMONWEALTH v. McDERMOTT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 575

152 N.E. 704

COMMONWEALTH

v.McDERMOTT.

Supreme Judicial Court of Massachusetts, Middlesex.

June 1, 1926.

Exceptions from Superior Court, Middlesex County; J. Walsh, Judge.

Frank S. McDermott was conviceted of conspiring to receive stolen goods and of receiving stolen goods, and he excepts. Exceptions overruled.

A. K. Reading, S. H. Lewis, and R. W. Stearns, all of Boston, for the Commonwealth.

J. H. Vahey, M. F. Brady, and J. S. Cannon, all of Boston, for defendant.

WAIT, J.

The United Wholesale Grocery Compay, a voluntary trust carrying on business at Worcester, employed the Hildreth Trucking Company to transport goods from Boston to Worcester. The trucks both going and coming passed through Waltham. Certain drivers of the trucks, from September, 1923, until the state police interfered on October 11, 1924, made a practice of selling part of the lading of their trucks belonging to the grocery company to the defendant, McDermott, a storekeeper in Waltham, for cash or for liquor. They either left the goods with him en route from Boston to Worcester, or, having arranged a sale, brought him the goods on their return from Worcester, and they received from one Reines, the receiving clerk of the grocery company at Worcester, slips acknowledging the receipt by the grocery company of the entire ladings which had been placed upon the trucks at Boston. In most cases McDermott paid the drivers; but a few times he made payment to Reines.

The commonwealth sought to prove these transactions a criminal conspiracy between McDermott, the truckmen and Reines, to steal or to receive stolen goods; and to be larceny or receiving of stolen goods by the several participants.

An indictment was returned against McDermott, the pruchaser, Bourget, Carter, Gibree, Willand, Shackett, Adams, Morrell, La Vallee, truck drivers, Reines, the delivery clerk, and one Linsky, another Waltham tradesman, charging, in its first count, that they conspired to steal goods of the grocery company, and, in its second count, that they conspired to buy, sell and aid in the concealment of stolen property belonging to the company.

An indictment also was returned against McDermott charging him in half of the two hundred and eighty-two counts with larceny of goods of the company in specific amounts and at specified times, and in the other half with buying, receiving and aiding in the concealment of stolen property. Bourget, Morrell, Carter, Shackett and Willand pleaded guilty to the conspiracy and also to separate indictments for larceny. La Vallee pleaded guilty to larceny but not guilty to the conspiracy. McDermott, Reines, La Vallee and Linsky were placed on trial together; all but La Vallee for both conspiracy and for larceny and receiving stolen goods. Linsky was found not guilty. McDermott, Reines and La Vallee were found guilty of conspiracy to commit the crime of receiving stolen goods, and McDermott, besides, was found guilty on one hundred and seventeen counts for, receiving stolen goods.

McDermott saved exceptions to the admission of evidence, to refusals to instruct the jury as requested, to refusals to direct a verdict of not guilty of conspiracy, and on the counts alleging larceny, and to certain portions of the charge to the jury. We shall deal with them, not in detail, but with reference to the contentions of his brief.

The police interfered on October 11, 1924. Within a day or so thereafter, Reines, who, as his employer testified, had a remarkable memory, began the preparation of a list of the amounts taken with the date of the taking and the name of the driver concerned. He had memoranda kept by him of some of the happenings. On October 15th he pointed out from the receiving books of the grocery company items which had gone to McDermott. He prepared on yellow sheets lists of the items. These on October 20th he compared and checked with the books of the Hildreth Trucking Company, and a schedule was made up with dates, goods and names of truckmen, of merchandise which had been shipped by Hildreth's Express from points in Boston to the grocery company in Worcester and which he had receipted for as delivered to that company but which in fact never was so delivered. This schedule he certified and marked on each sheet with his initials, as of October 17, 1924. His original memoranda he destroyed and the yellow sheets do not appear. This schedule was offered in evidence. On objection by McDermott and Linsky, it was admitted as against Reines alone. It was used as Exhibit 2, during the trial, as a basis of questions put to witnesses and, apparently, as a guide in proof.

Somewhat similar schedules were prepared dealing with the sales and deliveries made by the drivers, who talked them over with Reines and the officers acting for the commonwealth in investigating the matter and preparing for trial. There was considerable evidence of statements made by Reines in regard to these schedules.

Succinctly stated, McDermott's contentions are that he should have a new trial because the judge failed accurately to define to the jury the limits within which a declaration of an alleged conspirator can be used against another; because he permitted certain schedules to be used in refreshing the memory of witnesses, and because he refused to permit certain cross-examination.

First, in regard to the questions excluded in cross-examination. They were intended to affect the credibility of the witnesses by showing pleas of guilty to indictments which contained charges of which they were ignorant, or items inconsistent with testimony given upon the stand. While not absolutely immaterial, the evidence fell within the class where the discreton of the judge in controlling the limit of cross-examination...