Commonwealth v. Riches

• Decision Date: 29 December 1914
• Docket Number: 2351.
• Citation: 107 N.E. 371,219 Mass. 433
• Parties: COMMONWEALTH v. RICHES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

219 Mass. 433

107 N.E. 371

COMMONWEALTH v. RICHES et al.

No. 2351.

Supreme Judicial Court of Massachusetts, Suffolk.

December 29, 1914

COUNSEL

Thos D. Lavelle, Asst. Dist. Atty., for the Commonwealth.

Samuel R. Cutler and Harry W. James, both of Boston, for defendant Riches.

OPINION

CROSBY J.

This is an indictment in one count which charges the defendants with conspiracy to steal by false pretenses. Both defendants were convicted and alleged exceptions. Most of the questions raised by each defendant are substantially alike. The commonwealth filed specifications which contain the material representations relied on. The defendants contend that there was not sufficient evidence to prove a conspiracy and that certain evidence was improperly admitted.

There was evidence to show that one Lemke called upon the defendant Riches by reason of an advertisement which appeared in the Boston Globe on June 1 and 2, 1913. This advertisement sought a man to travel as ticket taker and treasurer for a theatrical company, twenty-five dollars to be allowed weekly for expenses, and one-third of the profits. Lemke testified that Riches told him in substance that it was a theatrical enterprise and was a good proposition; that they were booked way ahead; that it was a good show and had been running right along; 'that they were making good, that it would be a real good thing for me'; that Riches asked him how much money he had, and upon being informed by Lemke that he (Lemke) did not have five hundred dollars, Riches telephoned to Moore and then said he could pay three hundred dollars down and Moore would let the rest go and take it out of the profits of the company each week, that afterwards Riches gave him (Lemke) a card introducing him to the 'Purple Widow Company,' and told him 'if you don't make out with Moore come back to me.' Lemke further testified that he presented the card to Moore, who showed him guaranties and telegrams and showed him bookings ahead for the company for several weeks that Moore told him his share of the profits would be fifty dollars a week, and that he (Lemke) was to be treasurer and ticket taker; that the show 'had been making a great hit' and had been running right along and was running then; and that he (Lemke) was to receive a one-third interest in the business for five hundred dollars. Lemke also testified that he made a deposit of ten dollars with Moore and that Moore telephoned for Riches to come up and prepare the papers; that Riches came, and Riches and Moore shook hands and Riches made the papers and they were signed by him (Lemke) and Moore and witnessed by Riches; and that he then paid Moore two hundred and ninety dollars. One paper conveyed to Lemke a one-third interest in the Purple Widow Company for five hundred dollars, and contained the following provision:

'It is understood and agreed that all representations, inducements and conversations leading to the acceptance of this agreement of association are contained fully and exclusively in these articles of agreement.'

The other paper was a partnership agreement between them to carry on the theatrical business.

Lemke joined the show at Brockton, where it stayed three days and the following three days played at Attleboro. He testified that on the following Monday Moore told him if he (Lemke) did not put in more money or assign his interest to one Carlton the show would disband and that there would be no more money to go ahead with. Whereupon he (Lemke) assigned his interest to Carlton on June 18th, about sixteen days after he had paid the three hundred dollars, and left the show with the understanding that such interest should be reassigned to him. Lemke testified that all he ever received was $2.20 for meals and $5 as part salary.

There was also evidence to show that one Garno saw a similar advertisement in the Boston Globe on July 8, 1913, except that it called for a manager instead of a treasurer and ticket taker, and that on July 9th, he called upon the defendant Riches who told him it was a good proposition; that he (Riches) had nothing to do with it himself; that Moore picked the company, and that he (Riches) acted only as agent; that the next day Riches took him to Moore's office and Moore told him that the Purple Widow was playing under a guaranty, as it played at all times under guaranties. Garno also testified that he made an agreement with Moore to act as manager and was to receive twenty-five dollars a week and one-third of the profits; that Riches was present and drew the contracts; that Moore said the show had been on the road twenty weeks and was 'drawing big.' Garno paid Moore five hundred dollars. He testified that there was nothing given him to do, and that he remained with the show about four weeks, when he left, having received altogether about forty-four dollars; that he released his interest in the show to Carlton until the first day of the following November.

There was evidence that Carlton and Moore were equal owners of the show on the dates when the one-third interest therein was transferred to Lemke and also when the transfer was made to Garno; that from April 15, 1913, up to the time that Lemke entered into the agreement for the purchase of a one-third interest, no money had been made, that the show had not been running continuously, and that Moore was aware of these facts.

There was also evidence to show that Moore was short of money when the contract was made with Lemke and owed six months' office rent; that Moore concealed from Lemke the fact that Carlton had any interest in the...