Commonwealth v. Rudnick

• Decision Date: 13 March 1945
• Citation: 318 Mass. 45,60 N.E.2d 353
• Parties: COMMONWEALTH v. SAMUEL RUDNICK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 45

60 N.E.2d 353

COMMONWEALTH v. SAMUEL RUDNICK.

Supreme Judicial Court of Massachusetts, Suffolk.

March 13, 1945

December 4, 1944.

Present: FIELD, C.

J., QUA, DOLAN RONAN, & WILKINS, JJ.

Conspiracy. Building.

Boston. Practice Criminal Exceptions: whether error harmful, general exception; New trial. Evidence, Competency, Conspiracy Contradiction of witness, Cumulative. Custom. Witness Contradiction. Error, Whether error harmful.

A conviction under an indictment charging conspiracy to violate the building law of Boston, St. 1907, c. 550, in certain particulars was warranted if there was evidence of a conspiracy to violate it in any one of such particulars. A finding, that a builder engaged to make alterations in a building in

Boston, a plan of which had been approved by the building department of the city, was guilty of conspiring to violate the Boston building law, was warranted by evidence that both he and one who could be found to have been "at the head and front of the whole enterprise" knew that the building law required the plan to be followed in making the alterations, and that the builder, with the knowledge and approval of the other person, directed a material departure from the plan with respect to the location in which certain rooms were installed, thereby eliminating a

"passage to street" shown on the plan.

An alleged custom to do building alteration work in Boston in a manner varying from the alteration plan approved by the city building department and afterwards to procure approval from the department would furnish no defence to a criminal charge of conspiracy to violate the provision of the Boston building law requiring the alteration to be performed in accordance with the plan.

At the trial of an indictment for conspiracy, where there was evidence that several defendants were conspirators with one another and with a third person, the allowance of a motion by the Commonwealth, presented at the close of its case, that evidence of the acts done and declarations made by the third person and by the defendants in pursuance of the alleged conspiracy be admitted against each of the defendants showed no error respecting one who was convicted, although the others were acquitted.

Evidence that a previous witness had not attempted to purchase certain materials was admissible to contradict him where, although he at first had testified that he had not sought to purchase them, thereafter he had testified that if he had stated before the trial that he had tried to get the materials, "then he had tried," and that his answer was not that he had never tried to get them.

The admission or exclusion of evidence which is merely cumulative rarely constitutes prejudicial error.

An exception to a question asking for "the conversation" related to the whole conversation and must be overruled where part at least of the conversation was admissible.

Upon a motion for a new trial by one of several defendants who was convicted at the trial of an indictment for a conspiracy among the defendants and a third person, the other defendants being acquitted, there was no error in the denial of his requests for rulings that upon the issue whether the verdict was against the evidence or the weight of the evidence, the trial judge must disregard "the evidence admitted in the first place against defendants who have been acquitted and subsequently admitted against all defendants at the trial."

INDICTMENT, found and returned on May 19, 1943. The case was tried before Broadhurst, J.

Certain of the defendant's requests for rulings were as follows: "11. If it appears that the total area of the premises 59 and 65 Broadway is less than ten thousand feet, the burden is upon the Commonwealth to prove beyond a reasonable doubt that 59 and 65 Broadway are two separate buildings in order to convict the defendant Samuel Rudnick of conspiring with one or more of the other defendants to depart from the drawings approved by the building commissioner in respect to the openings in the wall between said buildings.

"12. Unless it appears that the wall between 59 and 65 Broadway was a partition wall, or in the alternate that the area of said buildings was ten thousand feet or more, the failure to provide the opening cut therein with fire doors as specified in the plan approved by the building commissioner (exhibit 3) was not a violation of" St. 1907, c. 550, Section 31.

"14. The approval of the plumbing work by the building commissioner on or about October 16, 1942, in the location where the toilets were actually installed, validated the departure from the drawings approved by the building commissioner with respect to the location of said toilets.

"15. Upon all the evidence the rear wall of 17 Piedmont Street, which was cut through to provide a passageway to the cocktail lounge, was not a party wall within the meaning of" St. 1907, c. 550, Section 11, subsection 9.

"16. It appearing from the testimony of the Commonwealth expert that the rear wall of 17 Piedmont Street which was cut through to provide a passageway to the cocktail lounge was an independent wall not used for the support of any other building and was less than twelve inches in thickness, said wall as a matter of law did not separate two or more buildings and was not used or adapted for the use of more than one building.

"17. It appearing from the testimony of the Commonwealth expert that the rear wall of 65 Broadway which was cut through to provide a passageway to the cocktail lounge was an independent wall not used for the support of any other building and was less than twelve inches in thickness, said wall as a matter of law did not separate two or more buildings and was not used or adapted for the use of more than one building."

A portion of the charge was as follows: "If the wall separating 59 and 65 Broadway was used for the support of floors or roofs or both floors and roofs in both buildings, under the definition of a party wall in this building code, that wall was a party wall. The same is true of any other wall in any of those buildings. If in fact it was used for the support of two buildings or adapted to the use of two buildings, it was a party wall and under this Act no opening could be made in a party wall without installing fire doors therein."

J. C. Johnston, (J.

L. Yesley with him,) for the defendant.

J. K. Collins, Assistant Attorney General, (A.

B. Cohen, Assistant Attorney General, with him,) for the Commonwealth.

WILKINS, J. The indictment is in one count charging that, with knowledge of St. 1907, c. 550, Sections 12 and 31, Barnett Welansky, the defendant Rudnick, Reuben O. Bodenhorn, James Welansky, David Gilbert, and Theodore Eldracher from on or about June 1 1942, continuously until May 1, 1943, conspired (1) to alter the buildings at 17 Piedmont Street, 4 and 6 Shawmut Street, and 59 and 65 Broadway, Boston, without a permit issued by the building commissioner of the city of Boston, (2) to alter the buildings in such a way that the work to be done was not to be done in accordance with drawings bearing the approval of the commissioner, and (3) to make openings for doorways in party walls without installing in each opening two sets of fire doors separated by the thickness of the wall.

^[1] All except Barnett Welansky (hereinafter called Welansky) were put upon trial together. The defendant alone was found guilty by the jury, and the others were acquitted, Bodenhorn by order of the judge. The defendant's exceptions present the correctness of the judge's rulings in the denial of his motion for a directed verdict, in the recording of the verdict, in the admission and exclusion of evidence, in the denial of requests for instructions, and in the denial of a motion for a new trial and of requests for rulings presented in connection with such motion.

The buildings were to be used in connection with a restaurant known as the Cocoanut Grove (hereinafter called the Grove), in which a fire occurred November 28, 1942. See Commonwealth v. Welansky, 316 Mass. 383 .

1. We first consider the motion for a directed verdict.

The indictment charges but one offence, and the defendant might properly be convicted if there was evidence warranting a finding of a conspiracy to violate the statute in but a single respect. Commonwealth v. Kimball, 7 Gray, 328, 331. Commonwealth v. Meserve, 154 Mass. 64 , 72-74. McDonnell v. United States, 19 F.2d 801, 803. Andrews v. United States, 108 F.2d 511, 515. G. L. (Ter. Ed.) c. 277, Section 35. See Frohwerk v. United States, 249 U.S. 204, 209-210. Compare Commonwealth v. Parrotta, 316 Mass. 307 . Accordingly, without intimating that proof of other violations was lacking, we shall deal with the sufficiency of the evidence relating to one violation only. The plan for alterations as filed and as approved by the building department called for two toilet rooms to be located on the north wall of 59 Broadway, but actually these rooms were installed on the west wall, where the plan showed a "passage to street," which, in fact, in the course of the alterations was permanently blocked up.

Since the defendant was the only alleged conspirator who was both tried and convicted, the verdict of the jury means that he was guilty of conspiracy with Welansky, who was not tried. The indictment being for conspiracy to commit an offence which is malum prohibitum only, there must have been an intent to do wrong on the part of both the defendant and Welansky, and both must have had knowledge of the existence of the law and knowledge of its actual or intended violation. Commonwealth v. Benesch, 290 Mass. 125, 134, 135. And there must have been a combination between them for concerted action to that end. Commonwealth v. Hunt, 4 Met....