Commonwealth v. Orler
| Decision Date | 16 April 1924 |
| Parties | COMMONWEALTH v. ORLER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions and Appeal from Superior Court, Suffolk County; P. M. Keating, Judge.
Jordan S. Orler was convicted of larceny, and he excepts, and also appeals from an order denying his motion to quash the indictment. Exceptions overruled.J. F. Barry, of Boston, for appellant.
M. Caro, Asst. Dist. Atty., of Boston, for the Commonwealth.
The defendant and two other persons were charged in one indictment consisting of twelve counts with larceny of the property of one Emma A. Martin, otherwise known as Emma A. Clark, and in a second indictment of one count with conspiracy to steal the property, moneys, goods and chattels of the same person. A verdict of not guilty was ordered on the indictment for conspiracy, and for all the defendants except Orler on the indictment for larceny. The case is here on the exceptions of Orler to the overruling of a motion to quash the indictment, and to rulings on the admission of evidence, and to the refusal of the judge to instruct the jury that there was no evidence that the securities named in the indictment were ever obtained by the defendant, and to the refusal to direct a verdict of not guilty on each count.
On the defendant's motion under G. L. c. 277, § 40, a bill of particulars was filed, and subsequently the commonwealth filed further particulars. The defendant moved to quash because the indictment as supplemented by the bills of particulars did not set forth any crime known to the law, and failed to describe fully, plainly, substantially and formally the crime or crimes with which it purported to charge him. The motion was denied rightly. The indictment as originally drawn followed G. L. c. 277, § 17, and the bills of particulars gave the defendant sufficient information of the nature of the crime charged. Commonwealth v. Wakelin, 230 Mass. 567, 571, 120 N. E. 209;Commonwealth v. Koslowsky, 238 Mass. 379, 383, 131 N. E. 207.
[1] We are concerned only with counts 6, 7 and 12, on which the defendant was convicted, verdicts in his favor having been ordered on the other counts. The sixth count charges the stealing on December 28, 1916, of ‘one certificate for shares of stock of the Bates Manufacturing Company of the value of seven thousand dollars. * * *’ The seventh count charges the theft of January 26, 1917, of ‘one certificate for shares of stock of the Edison Electric Illuminating Company of Boston of the value of four thousand eighty dollars. * * *’ The twelfth count charges that on June 14, 1917, the defendant did steal ‘one certificate of shares of stock of one Danforth Clark & Co. of the value of twenty-six thousand two hundred and fifty dollars. * * *’ The commonwealth contended that all of this property was obtained through the fraud of the defendant practiced upon Emma A. Clark, otherwise called Emma A. Martin, or Emma A. Kenilworth, who died June 12, 1917, in New York City where she was living under the name of Kenilworth. She will be referred to hereafter under the last name. It had the burden of proving beyond reasonable doubt that by the false representationsof the defendant, she was induced to part with her property, and that such representations were made with intent to defraud, and that the purpose was accomplished. G. L. c. 266, § 30. Commonwealth v. Coe, 115 Mass. 481.
[2][3] We find no error in the admission in evidence of the detailed statement furnished by the defendant of his purchase and sale of various stocks including stocks of the description in the indictment, on the orders of Mrs. Kenilworth, or of the testimony he gave at the hearing before the master in the contest by Kenilworth for the appointment of an administrator, as to his relations and transactions with the intestate. The certificate for ten thousand shares of Southern Oil Companies in the name of Emma A. Martin also was rightly admitted on the evidence of the administrator of her estate. It was countersigned by ‘J. S. Orler & Company,’ the name under which, as the jury might have found, the defendant carried on business. The jury could find on all this evidence that he received and disposed of stocks or property described in the sixth, seventh and twelfth counts. There was also evidence properly admitted of the value of the stock of the Bates Manufacturing Company, and of Danforth Clark Company. It could have been found by the jury on admissible evidence that the defendant received certificates of stock in the Bates Manufacturing Company, in the Danforth Clark Company and in the Edison Electric Illuminating Company of Boston, all of very substantial value, from the New England Trust Company on an order signed by Mrs. Clark, being one of the names of Mrs. Kenilworth, and converted these stocks to his own use and caused to be issued in her name stock of the Southern Oil Companies, organized and prompted by him, and bonds and stock of the Victoria Mining Company, all of no market value.
[4] The evidence of the expert on the value of stocks was admissible, even though some of the sources of his knowledge may not have been competent evidence. National Bank of Commerce v. New Bedford, 175 Mass. 257, 261, 56 N. E. 288.
[5] Several letters were admitted in evidence subject ot exception. The facts respecting these letters were or might have been found to be that they were written on the business letter heads of the defendant, were directed to Mrs. Keniworth at the street, number and apartment in New York where she lived and was visited twice a month or oftener by the defendant, and were signed by the defendant. The substance of the letters related to stocks either owned originally by Mrs. Kenilworth or substituted by the defendant for those originally owned by her. Other evidence tended to show that the defendant was corresponding with her at this period. The letters were produced at the trial by the attorney for Mr. Kenilworth, alleged husband of the woman to whom they were addressed. He testified that he received the letters from Mr. Kenilworth, for whom he was acting as counsel in his petition for appointment in this commonwealth as administrator of the estate of the Mrs. Kenilworth named as addressee in the letters, and that Mr. Kenilworth was appointed administrator of her estate in the state of New Jersey but not in this commonwealth. It appeared from evidence rightly admitted, of testimony given by the defendant in another proceeding touching his relations with Mrs. Kenilworth, that he never had seen her husband at any of his visits to her at her home in New York; that on one of these visits she had said to him that she was married but received no support from her husband; that he called on Mrs. Kenilworth at her New York home fortnightly or oftener from August or September, 1916, until the 4th or 5th of June, 1917, when he last saw her, and that on all these occasions she appeared to be bright ‘and very capable in every way’ and interested in the subject of her investments.
These were business letters signed by the defendant apparently in ordinary course. They...
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