Commonwealth v. Murphy

Decision Date18 April 1933
Citation185 N.E. 486,282 Mass. 593
PartiesCOMMONWEALTH v. MURPHY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Criminal Court, Suffolk County.

James A. Murphy was convicted of larceny, and he brings exceptions.

Exceptions sustained.

W. J. Foley, Dist. Atty., and A. F. Iovino, Asst. Dist. Atty., both of Boston, for the Commonwealth.

A. D. Hill and A. H. W. Higgins, both of Boston, for defendant.

WAIT, Justice.

The defendant was found guilty by a jury upon four complaints, which were tried together, and which charged him with larceny from Mrs. Drummie on May 13, 1931, from Mrs. Boyle on June 17, 1931, from Mrs. Boggie on June 18, 1931, and from Mrs. Drew on June 22, 1931, respectively. At the trial bpth prosecution and defenceadmitted that sums varying from $15 to $25 were obtained on the respective dates from the women, by a man who came to them and represented that he wished to hire an apartment. He told substantially the same story to each, saying that he had regular employment and had a wife and daughter who could not come to see the apartment that day but would come to see it in a few days. He gave to each a check as deposit for the apartment, and received the balance above the deposit in cash. Each of the four checks was drawn upon the National Shawmut Bank for $45. The bank had no account with the makers named. The names of the makers and of the payees were different. The checks bore the dates May 12, June 16, June 18, and June 22, 1931, respectively. The man indorsed each of them in the name of the payee borne on the check, in the presence of the woman to whom it was given. All the checks it was admitted were drawn, indorsed and delivered by the same man. Each of the four women identified the defendant as the man who defrauded her. The woman defrauded on June 17 testified that the man called about 10:30 a. m., went away because the occupant of the apartment was asleep in it, came back, as agreed, about 11:30 a. m. and gave the check. The woman defrauded on June 18 testified that the call was between 10 and 11 a. m. She said she recognized the defendant as the visitor because he had two pairs of glasses, one for ordinary use, the other for reading as was the case with the visitor. The defendant testified that he was an automobile salesman, at the time of the alleged offenses, employed as salesman for Ford cars, that he had never seen the four women or had any dealings with them, that he could not remember his movements on May 13 or June 22, but was at home and working about his house on June 17 and 18. His wife, his son, and the occupant of another apartment in their house testified that he was engaged about the house on the seventeenth and eighteenth of June, the holiday enabling them to fix those days, whereas nothing made the thirteenth or the twenty-second stand out in their minds. There was no evidence connecting the defendant with the offences other than the identifications by the several women. The only issue of fact in controversy was the identity of the giver of the checks with the defendant.

The defendant offered in evidence checks dated April 21, 1931, drawn on the National Shawmut Bank, and checks dated July 18 and September 30, 1931, drawn on the First National Bank of Boston, with evidence of an expert in handwriting that the typewriting and handwriting upon them were by the same person who had typed and written upon the four checks complained of; and with evidence that about their dates they had been delivered to three other women by a man who had told substantially the same story to each which had been told the four to whome checks had been passed in the cases at bar, and had obtained money upon them in the same way. The names of makers and payees differed from those on the four checks in evidence. The two earlier were drawn for $40, and that of September 30 was for $45. Further offer was made that the recipients of the checks of April 21 and July 18 would testify that the defendant looked somewhat like but was not the man who gave and indorsed the checks to them. In connection with the check dated September 30, offer was made to show that on the day it was indorsed and delivered to Margaret Noonan in East Boston, the defendant was in custody; that Mrs. Noonan made complaint, identified the defendant as the man who delivered it, so testified at a trial which resulted in the defendant's acquittal, and will testify that she has since seen a man she believes to be the giver of the check in East Boston, and is satisfied she was in error and that the defendant is not that man. Further the record of the court in East Boston and acquittal of the defendant in the Noonan case, and the record of the municipal court of the West Roxbury district and acquittal of this defendant therein upon a complaint based upon the check dated April 21, were offered in evidence. Subject to exception, the trial judge excluded the checks, the testimony, and the records offered. The question before us is the propriety of his ruling.

No one, we think, will deny that if the evidence offered is the truth it well might shake confidence in the identifications upon which alone this conviction rests. It would demonstrate that on October 1, when the defendant was in custody and unable to be in East Boston, another man, the one who typed, wrote and indorsed the checks for which the defendant has been held responsible, was at large, telling the very story attributed to the defendant, passing and indorsing in the hand used on the check here in issue a check drawn for the same amount as the checks defendant is accused of passing, defrauding trusting women in the same way-a man who resembles the defendant, but is not and cannot be he. It shows that one woman was certainly mistaken, and is willing to say so. It indicates that two others who met the man who writes and acts as the defendant is accused of doing are ready to testify that he is not the defendant. It does not establish his innocence. The handwriting on the seven checks may not all be that of one man. Two thieves may have worked together to protect one another by following the same plan and acting and looking in the same way. It does not follow that, because one did not do a thing on October 1, he did not do a similar thing in May and June. Acquittals in two courts do not establish freedom from guilt on a different charge on a different date in a different court. Mistake in identification by one person does not prove another one wrong. These are considerations for a jury. But, owing to the ruling, no jury has passed upon them. Unless some positive rule of law prevents, it would seem that the defendant is entitled to have a jury consider the evidence, pass upon its credibility and weigh it with the evidence of identification upon the issue of his guilt.

We find no such positive rule. It is established law that to show that A did not do a particular thing, evidence is admissible to show that some one other than he did it, or had motive, intent, opportunity and is as likely as A to have done it. Commonwealth v. Abbott, 130 Mass. 472, 485;Greenfield v. People, 85 N. Y. 75, 89,39 Am. Rep. 636;Carlton v. People, 150 Ill. 181, 37 N. E. 244,41 Am. St. Rep. 346. Before such evidence is admitted, however, it must be shown to be not too remote in time, Commonwealth v. Abbott, 130 Mass. 472, not too weak in probative quality, see Edwards v. Davis, 198 Mass. 441, 84 N. E. 855, and so connected with the...

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