Commonwealth v. McKnight

• Decision Date: 22 May 1933
• Parties: COMMONWEALTH v. McKNIGHT (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 35

186 N.E. 42

COMMONWEALTH

v.McKNIGHT (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

May 22, 1933.

Appeal from Superior Criminal Court, Middlesex County; H. P. Williams, Judge.

Edwin T. McKnight and others were convicted for lending bank funds on worthless security, and they appeal.

Affirmed.

J. N. Johnson, of Medford, for appellants.

W. L. Bishop, Dist. Atty., and W. G. Andrew, Asst. Dist. Atty., both of Boston, for the Commonwealth.

LUMMUS, Justice.

The first of these cases is an indictment under G. L. (Ter. Ed.) c. 266, § 53A, which originated in St. 1922, c. 313, § 2. The text of the statute appears in Commonwealth v. Nichols, 257 Mass. 289, 153 N. E. 787. The indictment charged in three counts that the defendant, with others, being officers of the Medford Trust Company, ‘did loan funds of said corporation and knowingly receive or accept for said corporation a fictitious, valueless, inadequate or irresponsible obligation as security for said loan, the consideration or security not being otherwise sufficient, and not being necessary to prevent loss upon a debt previously contracted in good faith.’ The second of these cases is an indictment in one count under the same statute, in the same form. By specifications filed upon motion by the defendant, it appeared that the four counts referred to distinct offences.

The defendant waived his right to trial by jury under G. L. (Ter. Ed.) c. 278, § 2; c. 263, § 6, and was tried by the Superior Court without jury. The trial judge ordered that the cases be subject to G. L. (Ter. Ed.) c. 278, §§ 33A-33G, which provide for carrying questions of law to this court in cases of felony upon an appeal, a summary of the record, a transcript of the evidence, and an assignment of errors, in place of a bill of exceptions. Commonwealth v. McDonald, 264 Mass. 324, 162 N. E. 401. The defendant was found guilty upon each count in the first case and upon the single count in the second case, was sentenced to pay a fine upon each count, and duly filed his claim of appeal and his assignment of errors. The assignment of errors is by no means clear, and hardly comes up to the requirement of the statute that the ‘specific grounds upon which any claim of error is based shall be set forth in concise form.’ Yet we deal with it as we understand it.

The first error assigned is that the court failed to quash the indictments, although no motion to quash was filed. The defendant urges that the indictments are had for duplicity, because the pleader confuses two separate offences under the statute, (1) loaning funds to an individual, corporation, etc., known to be insolvent, and (2) knowingly receiving or accepting a fictitious, valueless, etc., obligation. But it is clear that the latter offense is the only one charged. There is no allegation that the borrower was known to be insolvent, and the reference to a loan is only for the purpose of showing the occasion for taking an obligation as security. There is no such conflict as the defendant asserts between the section under which the indictments were drawn and G. L. (Ter. Ed.) c. 172, § 33, giving to trust companies the right to advance money or credits ‘on real estate situated in the commonwealth and on personal security, on terms to be agreed upon.’ The general language of the latter statute grants no right to accept security known to be inadequate. A lesser formal objection to the indictments, that the alternative elements of the offence are alleged disjunctively, thus violating the rule requiring certainty in criminal pleading, is not taken. Commonwealth v. Grey, 2 Gray, 501, 61 Am. Dec. 476;Commonwealth v. Livermore, 4 Gray, 18;Commonwealth v. Burns, 9 Gray, 287;Commonwealth v. O'Brien, 107 Mass. 208;Commonwealth v. Adams, 127 Mass. 15, 19. See G. L. (Ter. Ed.) c. 277, § 31. We have dealt with the objections to the indictments as though open on this appeal, but the practice of raising questions of pleading after the verdict or finding has long since become obsolete. G. L. (Ter. Ed.) c. 278, §§ 17, [283 Mass. 39]34, Commonwealth v. Drohan, 210 Mass. 445, 447, 97 N. E. 89,Commonwealth v. Lombardo, 271 Mass. 41, 44, 170 N. E. 813. It is only a failure to allege, even imperfectly any crime known to the law, that can be raised at such a stage of the case. Commonwealth v. Cooper, 264 Mass. 378, 162 N. E. 733.

The second assignment of error is that the court, after all the evidence had been taken, ordered the indictment in the second case amended under G. L. (Ter. Ed.) c. 277, § 35A, to correspond with the proof, by alleging a loan of credit as well as funds, since the evidence showed that the loan alleged was made in the form of certificates of deposit instead of money. Although no written amendment was formally filed and allowed, the case must be treated as though that had been done. This amendment, as has been substantially pointed out earlier in this opinion, related only to the inducement or occasion for taking the obligation, and not to any essential element of the offence charged. See G. L. (Ter. Ed.) c. 277, § 35. No exception to the allowance of the amendment was noted, and if there was any error in its allowance, which we do not intimate (see Commonwealth v. Snow, 269 Mass. 598, 169 N. E. 542, 68 A. L. R. 920), the point is no longer open.

There is no conflict between G. L. (Ter. Ed.) c. 266, § 53A, under which these indictments were found, and G. L. (Ter. Ed.) c. 172, § 61; c. 168, § 54, prohibiting a savings department of a trust company from investing in a real estate mortgage more than sixty per cent of the value of the real estate or G. L. (Ter. Ed.) c. 167, § 47, penalizing the wilful doing of an act forbidden by the banking...