Commonwealth v. Orler
| Decision Date | 15 April 1925 |
| Citation | 252 Mass. 55 |
| Parties | COMMONWEALTH v. JORDAN S. ORLER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 1, 1924.
Present: RUGG, C.
J., BRALEY, CROSBY PIERCE, CARROLL, WAIT, & SANDERSON, JJ.
Larceny. Pleading Criminal, Indictment, Bill of particulars.
Fraud. False Pretences. Evidence, Relevancy and materiality, Competency Expert, Letter, Inference. Practice, Criminal, Indictments tried together, Exceptions.
A motion to quash an indictment in twelve counts for larceny from a woman of certificates of corporate stock on the ground that, as supplemented by bills of particulars, it 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 the defendant, properly may be denied, where the indictment followed the form set out in G.L.c. 277, Section 17, and two bills of particulars stated that the theft was by false representations, stated the place of the representations as in Boston and New York and the times as between
August 12, 1916, and June 14, 1917, and described in detail many false representations which were not of matters of opinion.
At the trial of the indictment above described, it appeared that the woman from whom the thefts were alleged to have occurred had died, and it was held, that
(1) There was no error in admitting in evidence a detailed statement furnished by the defendant in 1917, before the indictment, to an attorney at law representing the husband of the woman;
(2) There was no error in admitting in evidence testimony given by the defendant at a hearing before a master in a contest by the woman's husband for appointment as administrator of her estate in this
Commonwealth, at which the defendant described his relations with and transactions for the woman;
(3) It was not improper to admit in evidence a certificate of shares of a certain corporation countersigned by a firm name under which, the evidence tended to show, the defendant carried on business, in connection with evidence that the stock was of no value, was sold to the woman by reason of false representations by the defendant after he had induced her, for the purpose of procuring money to carry through that transaction, to sell stock of very substantial value belonging to her.
At the trial above described, the judge admitted in evidence business letters, written by the defendant and addressed to the woman and relating to the transactions in question, which were produced by an attorney representing the husband of the woman, who had been appointed administrator of her estate in another State and had sought such appointment in this Commonwealth, although there was no direct evidence that the letters had been mailed, postage prepaid and properly addressed to the woman. Held, that
(1) Giving due weight to the presumption of innocence and to the common knowledge of mankind as to the usual course of business, it could be inferred that these letters reached and were read by the woman;
(2) There was no error in the admission of the letters in evidence.
At the time when the letters of the defendant above described were admitted in evidence, there were being tried with the indictment against the defendant indictments for larceny in twelve counts against the defendant and two others and a further indictment against all of them for conspiracy to defraud. At the close of the evidence, verdicts for the defendants on the indictments for conspiracy and for the associates of the defendant on the joint indictment for larceny, and for the defendant on nine of the twelve counts for larceny in the indictment in question, were entered by order of the court; but no motion then was made by the defendant to limit or exclude any of the evidence in the letters which had been admitted. Held, that, the letters being competent when admitted, they remained in the case as competent evidence entitled to full probative force.
There was no variance between the proof and the counts of the indictment above described which were submitted to the jury.
Verdicts of guilty, on the three counts of the indictment above described which were submitted to the jury, were warranted since the evidence supported the essential charges and, while in the evidence there was much indicating that mere expressions of opinion by the defendant induced the woman to spend her money to purchase worthless securities, there also were statements of fact which might have been found to have been made by the defendant fraudulently and to have induced her to act to her harm.
INDICTMENT, found and returned on May 7, 1921, charging the defendant in twelve counts with larceny of certificates of corporate stock, as described in the opinion.
Each count of the indictment as originally framed charged that Jordan S. Orler, John D. Beyer and Jane Butland "did steal" the certificates in question. On a motion by the defendant Orler for particulars specifying whether the theft was by forceable taking, by false representation, or by embezzlement, the Commonwealth filed two bills of particulars, the first in substance stating that the thefts were by false representations at Boston and New York between August 12, 1916, and the dates set forth in the various counts of the indictment, and the second setting out specifically and in detail the nature of the false representations.
The case came on to be tried before Keating, J., and the defendant Orler presented the motion to quash the indictment described in the opinion. The motion was denied.
Richard J. Cotter, Esquire, an attorney at law who had acted for the husband of Mrs. Kenilworth, testified in substance that on or about July 5, 1917, the "detailed statement furnished by the defendant," referred to in the opinion, was given to him at his request by the defendant or his counsel.
The evidence as to the sources of knowledge of the "expert on the value of stock," referred to in the opinion, was as follows: Elmer L. Ditmars, called by the Commonwealth, testified that he had been a "salesman with Lee, Higginson and Company" for about twelve years; that they have a "statistical library that is probably as large as any in New England, or in the country, in which we have on file complete data of any corporation of any size," which consists "of a great many pamphlets, books, standard publications on financial matters, balance sheets, -- in fact, practically everything of that sort, -- every sort of information that we need to find out whether a security is good or not"; and that by reason of his experience in the course of his employment he could "state the values of the various kinds of stock."
Other material evidence is described in the opinion. At the close of the evidence the defendant Orler requested the judge to rule and instruct the jury as to each of the twelve counts that they must return a verdict of not guilty, and further requested the following rulings:
The requests were refused. By order of the judge, the jury found the defendants Beyer and Butland not guilty and the defendant Orler not guilty on all excepting the sixth, seventh and twelfth counts. On those counts the defendant Orler was found guilty. He alleged exceptions.
The case was argued at the bar in December, 1924, before Rugg, C.J., Braley, Pierce, & Wait, JJ., and afterwards was submitted on briefs to all the Justices.
J.F. Barry, for the defendant. M. Caro, Assistant District Attorney, 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, Section 10, 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, Section 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. Commonwealth v. Kozlowsky, 238 Mass. 379 , 383.
We are concerned only with counts six, seven and twelve, on which the defendant was convicted, verdicts in his favor having been ordered on the other counts. The sixth count charges the stealing on November 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 on ...
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