Commonwealth v. Perry

• Decision Date: 09 February 1926
• Parties: COMMONWEALTH v. PERRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 520

150 N.E. 854

COMMONWEALTH

v.PERRY.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 9, 1926.

Exceptions from Superior Court, Middlesex County; Jos. Walsh, Judge.

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

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

WAIT, J.

In February, 1922, four indictments were returned against the defendant. The first, No. 6167, charged that Perry, Barry, Collamore, Rice, Surette and Bouve between January 1, 1917, and August 1, 1918, at Melrose in said county, ‘did conspire together to commit thereafter from time to time and on different occasions as opportunity therefor should offer and not at any times then particularly set and fixed, the crime of stealing automobiles * * * the property of persons unknown to said * * * [Perry, Barry, Collamore, Rice, Surette and Bouve] at the time of such conspiracy.’ By a second count it charged in similar language that this and other defendants ‘did conspire together to commit thereafter from time to time and on different occasions as opportunity therefor should offer and not at any times then particularly set and fixed, the crime of buying, receiving or aiding in the concealment of stolen property, to wit, automobiles, which might thereafter be stolen from persons not then known to said * * * [Perry, Barry, Collamore, Rice, Surette and Bouve]’ but all of which automobiles the said codefendants named ‘then knew or thereafter and before such buying, receiving or aiding in the concealments of such stolen property, should have been accomplished, should come to know had been stolen.’

The second indictment, No. 6207, by a first count charged Perry alone with stealing at Winchester, on July 18, 1917, an automobile belonging to one Howard; and by a second count, at the same time and place with receiving that automobile knowing it to have been stolen.

The third indictment, No. 6218, charged Perry alone with stealing on November 30, 1917, an automobile belonging to Helliwell Garages, Inc.

The fourth indictment, No. 6224, charged Perry alone with receiving at Malden, on October 2, 1917, an automobile belonging to MacPherson knowing it to have been stolen.

Other indictments were found against Barry, Collamore, Rice, Surette and Bouve, severally charging each with stealing specified automobiles, or receiving similar stolen automobiles at various times and places.

All the defendants pleaded not guilty to No. 6167. They were placed on trial March 6, 1922. After the jury was impaneled, Rice, Surette and Bouve retracted their pleas and pleaded guilty to both counts of No. 6167, the conspiracy indictment, and to the counts in the separate indictments charging receipt of stolen automobiles knowing them to have been stolen. Perry was found guilty upon both counts of the conspiracy indictment, upon the second count of No. 6207 for receiving the Howard car knowing it to have been stolen, and upon No. 6224 for receiving the MacPherson car knowing it to have been stolen. By direction of the court, verdicts of not guilty were returned in No. 6218, and on the first count of No. 6207, which, severally, charged stealing the Helliwell Garages, Inc., and the Howard cars. The jury disagreed as to Barry. The case was continued as to Collamore whose health broke down during the trial. Exceptions claimed by Perry were sustained by this court. Commonwealth v. Perry, 248 Mass. 19, 142 N. E. 840. In February, 1925, he was again placed on trial, alone this time, on No. 6167, the second count of No. 6207 and No. 6224; for conspiring to steal automobiles; for conspiring to receive automobiles to be stolen, which he would know at the moment of receipt, though not of conspiring, had been stolen; for receiving the Howard car knowing it to have been stolen; and for receiving the MacPherson car knowing it to have been stolen. Rice, Surette and Bouve testified for the Commonwealth; and so did one Pembroke who might, if the evidence were believed, have been found to be a party in wrongful acts of the alleged conspirators.

[1] Perry was found guilty on all the changes. He now files two bills of exceptions. The first sets out many exceptions, some of which are waived by failure to argue them in this court. We shall take up those which are pressed, substantially as they are grouped in the defendant's brief.

[2] Many exceptions were claimed to the admission of testimony from Surette, Rice and Bouve, in regard to conversations about cars with Perry and to their conduct with respect to cars which had not been set out in specifications filed in March, 1922. At that time Perry moved that the Commonwealth upon each count of the conspiracy indictment, if it ‘purposed to show that any automobiles were stolen in pursuance of such conspiracy,’ or to show that any were received in pursuance of the conspiracy alleged in the second count, be ordered ‘to specify the date * * * the places where * * * the names and addresses of the owners, a description of the automobile * * * and the name * * * [and] address * * * of the person * * * who stole the same.’ The Commonwealth filed specifications ‘that it proposed to show as acts of stealing or receiving in pursuance of the conspiracy alleged, the acts of stealing or of receiving charged in’ twenty separate indictments which it enumerated and which had been found against the several persons alleged in the present indictment to be conspirators.

The evidence which could be introduced to prove the existence of the conspiracy was not limited by this specification to evidence which related only to automobiles specified thereby as stolen or received in carrying out the conspiracy, as the defendant contends. The indictment charged making and participation in a general conspiracy to steal or to receive stolen automobiles. It did not charge a series of separate conspiracies to steal or receive. The contentions of the defendant with regard to the effect of the specifications miss this distinction and, as a consequence, are unsound. The exceptions to the admission of the evidence of Surette, Rice, and Bouve, and the refusal to strike out testimony in regard to cars other than the Howard and MacPherson cars, are all based upon this misconception. The rulings of the judge were right. These exceptions are overruled.

There is nothing in Commonwealth v. Giles, 1 Gray, 466,Commonwealth v. Sinclair, 195 Mass. 100, 80 N. E. 799,11 Ann. Cas. 217, or the earlier decision in this case, Commonwealth v. Perry, 248 Mass. 19, 142 N. E. 840, cited by the defendant, which is inconsistent herewith.

[3] The testimony of Bouve in regard to a conversation with Perry about buying under an assumed name a car advertised for sale was competent in showing the relations and understanding between the two during the period fixed in the indictment. The act proposed was larceny, or could be so found. The effect of the testimony was for the jury.

[4] Surette in cross-examination had testified that he had given evidence before the grand jury. He was asked whether at that time he told ‘the grand jury anything about your being concerned in the theft of the Howard car.’ The question was excluded and the defendant excepted. Nothing appears to show that any testimony given by him at that time contradicted the testimony which he had given in this trial.

The limit of cross-examination was within the discretion of the presiding judge. We cannot say that it was abused, or that the defendant has been prejudiced.

[5][6] There was no reversible error in dealing with the testimony of Sergeant Sheehan. He was qualified to testify as an expert in regard to the things taken into account by the police in tracing an automobile; and his opinion that a number on a car which he was describing had been changed was competent. He was asked: ‘* * * Did you locate, in connection with your investigation of this case, Sergeant, the car belonging to Mr. Thomas Howard of Winchester, which had been stolen in July, 1917?’ He answered: ‘Yes, sir.’ ‘Where did you locate it, Sergeant?’ He answered: ‘At a garage at Natick, Mass.’ ‘And when?’ He answered: ‘November 16.’ These questions and answers were subject to the defendant's objection and exception. The questions were leading and the answers were to contain an opinion on the ownership of the car inquired about; but when taken in connection with the rest of the witness' testimony and the course of the trial, we think the jury must have understood that the witness was describing what he had done and observed in regard to a car which the Commonwealth claimed to be the Howard car; and not to be testifying to his opinion in regard to its ownership. The question directed his attention to a car about which a series of questions were to be put to him.

[7][8] Surette testified that in June, or July, 1917, he went to Winchester, took a Buick touring car, ‘D 45,’ belonging to Howard, drove it to Collamore's barn in Melrose, left it there, reported what he had done to Perry the next morning and received money from him. A ‘D 45’ Buick touring car, which the Commonwealth contended and brought evidence to show was the same car, was seen later by Sergeant Sheehan, who testified that it bore a number 192315.

The defendant contends that the Commonwealth was permitted to introduce evidence of Woods, an insurance agent, that a policy on a Buick touring car, ‘D 45,’ motor number 192315, was issued from his office, dated July 21, 1917, insuring the wife of the defendant as owner. The defendant excepted to the admission of the evidence. The substance of the evidence was competent. However the number was furnished to the insurers, whatever it may have referred to, if the defendant accepted the policy containing it, as there was evidence that he did, without protest so far as the bill of exceptions discloses, its presence in the...