Commonwealth v. Perry

• Decision Date: 26 February 1924
• Citation: 142 N.E. 840,248 Mass. 19
• Parties: COMMONWEALTH v. PERRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

248 Mass. 19

142 N.E. 840

COMMONWEALTH

v.PERRY.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 26, 1924.

Exceptions from Superior Court, Middlesex County; John F. Brown, Judge.

George T. Perry was convicted of receiving stolen automobiles and conspiracy, and brings exceptions. Exceptions sustained.R. T. Bushnell, Asst. Dist. Atty., of Boston, for the commonwealth.

W. H. Garland, of Boston, for defendant.

PIERCE, J.

The defendant, with one Barry, Collamore, Rice, Surette, and Bouve, was jointly indicted for conspiracy, between the 1st day of January, 1917, and August, 1918, in two counts; the first count charging in substance that the said defendants conspired to steal automobiles, and the second count in substance alleging that the same defendants conspired to receive by sale or aid in the concealment of automobiles, knowing the same to be stolen. The defendant was indicted separately for stealing on November 30, 1918, an autombile, the property of Helliwell Garages, Inc. The defendant was also indicted separately, in two counts, upon the accusations of stealing and receiving on July 18, 1917, an automobile, the property of one Thomas M. Howard. The defendant was also indicted separately on the charge of receiving, on October 2, 1917, a stolen automobile, the property of one David B. MacPherson. These indictments, with four other separate indictments charging Collamore with receiving stolen cars, the property respectively described as of one Lowe, Eyges, Bridges, and Buffam, were tried together.

After the jury was impaneled the defendants Rice, Surette, and Bouve each retracted his plea of not guilty, and pleaded guilty to the conspiracy charge and to the counts alleging receiving stolen automobiles, in the separate indictments pending against him. The pleas were accepted by the court, and the trial proceeded against the defendant Perry and against the defendants Collamore and Barry on the indictments against them. In the course of the trial Collamore fell ill and the cases against him were continued. By the direction of the court the jury found the defendant Perry not guilty of stealing the Howard car and the car of the Helliwell Garages, Inc. On the three remaining indictments the jury found the defendant Perry guilty on both counts of the indictment charging conspiracy, and on the indictments charging him with receiving the Howard car and the MacPherson car, knowing them to have been stolen. The jury disagreed as to the charges against Barry. Verdicts of guilty were returned on March 24, 1922, and the defendant on that day was sentenced to state prison, on both indictments for receiving stolen automobiles, with successive sentences. On November 16, 1922, the district attorney moved for sentence on the indictment for conspiracy and the defendant was therefore sentenced to the house of correction, said sentence to be served after the previous sentences.

In the course of the trial the indicted coconspirators Rice, Surette, and Bouve were called as witnesses and testified for the government. We shall consider the voluminous exceptions in the order of their presentation in the defendant's brief.

[1] Before the government had introduced any evidence of the alleged conspiracy, Rice was called and testified that two police officers, Sheehan and Day, came to his place at Wilmington ‘at one time in 1918’; that at that time he had in his barn a Buick touring car; that they asked him ‘where he got said car’; that ‘he then showed Sergeant Sheehan a bill of sale to show that he had the possession rightfully of said car.’ He then identified as the document in question two pieces of paper which were offered in evidence. The defendant objected to their admission ‘on the ground that there was no proof that he was connected in any way with this particular transaction as to which the witness was about to testify.’ The papers were then marked Exhibits 1A and 1B, and the witness stated that they bore the name of William H. Halley, 12 Oak Grove avenue, Springfield, Massachusetts; that he saw George T. Perry, the defendant, ‘sign that name in his office in the Journal Building, Boston, Massachusetts; that Mr. Perry made out the body of the bill.’ The defendant excepted to the admission of said paper as an exhibit, and stated his objection to be ‘that there was no evidence of conspiracy with Mr. Perry in any of these acts and they were not connected with him.’

The witness was then shown certain dies and a block plane. In relation to these he testified, in substance, that he had seen them before ‘up in my place out at Wilmington’; that ‘he gave those articles to Sergeant Sheehan that night he came out’; that ‘Mr. Perry paid for those dies, and they were turned back to Mr. Perry.’ The dies first above mentioned and the plane were then offered and received in evidence, marked Exhibits 2 and 3, and the defendant duly excepted. The witness then testified that he got the plane at Haymarket Hardware Company, and that Mr. Perry purchased it; that the car found in his possession the night Sheehan went out there he got from the defendant Daniel K. Collamore, Melrose Highlands; that he paid $50 for it; that he changed the motor number on that car to 292492, which number he took off the bill of sale that he had in his possession, referring to Exhibit 1, upon which a similar number appears. He then testified that Perry took the number from a book; that he described to the witness the way to change numbers on a motor, which the witness stated to be as he thereafter testified. He further testified that he painted the engines of cars with paint which he got and Perry paid for. It appeared from the testimony of the witness that he met the other alleged conspirators Surette, Collamore, and Barry, at Perry's office in Boston; and it could have been found from Rice's testimony that the scheme was to have the cars delivered at his shop in Wilmington, where he would change the numbers and deliver the cars, under Perry's instructions, to other parties to the conspiracy for disposition. There was no error in receiving in evidence the testimony connecting the defendant with the drafting of the bill of sale and the purchase of the plane and dies. Such testimony and the exhibits were relevant to establish against the defendant the charge of conspiracy; and the order of proof was a matter of judicial discretion, which does not appear to have been exercised in a manner prejudicial to the legal rights of the defendant. It follows that the exceptions taken to the testimony of Rice and the admission in evidence of the exhibits must be overruled. Commonwealth v. Johnson, 188 Mass. 382, 385, 74 N. E. 939;Commonwealth v. Dorr, 216 Mass. 314, 319, 103 N. E. 902.

The defendant duly excepted to the testimony of Sergeant Sheehan wherein, in substance, he said that on July 23, 1918, he had a conversation with Rice in reference to the Buick touring car found in the barn of Rice; that Rice stated that he was to have the next car that came to the defendant Collamore's place of business; that Rice showed him the bill of sale that was put in evidence during the testimony of Rice; that Rice said that ‘he went to Lawyer George T. Perry's office and requested a bill of sale, saying to Mr. Perry that he had stolen a car in Lowell and that he would like to get a bill of sale to cover it, to show it to his mother; that was the week previous to this car afterwards coming to Collamore's; the following week or thereabouts a car came to Collamore's, and Collamore called him up about it, and he brought the car to Wilmington, where he changed the numbers to the numbers that were on this bill of sale.’ He further testified that Rice said ‘he [Rice] would go to Collamore's place and bring cars over and change the numbers at his place, and that he would go to Perry's office, where Perry would supply him with certain numbers to change on these cars, from a book; that he would take these certain numbers to Wilmington and put those numbers on the cars.’ He further testified that, on the night Rice had testified he (Sheehan) came to the home of Rice at Wilmington, Rice went into the barn, ripped up a boarding and produced a set of dies and a wooden block plane (which were the dies and plane introduced in evidence during the testimony of Rice), which Rice told the witness were used to change the numbers on the Ford cars, and the body number and number on the door of Buicks. He also testified that three or four days after the night referred to, that is, July 23, 1918, he had another conversation with Rice wherein Rice stated ‘he accompanied Mr. Perry to Allen Bros. on Cornhill, where there was some transaction regarding dies; that the dies that were received from Allen Bros. were given to him; that he used these dies to change numbers on Buicks; that Rice did not show him those dies in question and did not tell him where they were until later on, he should say in November, 1918’; and that Rice told him he had returned the dies to Perry.

[2] The admission and statements of Rice with the police sergeant were in the nature of confessions of guilt, and manifestlywere not verbal acts in furtherance of any scheme of the codefendants and Perry to steal...