Commonwealth v. Stone

• Decision Date: 24 June 1947
• Citation: 73 N.E.2d 896,321 Mass. 471
• Parties: COMMONWEALTH v. NORMAN J. STONE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

321 Mass. 471

73 N.E.2d 896

COMMONWEALTH v. NORMAN J. STONE.

Supreme Judicial Court of Massachusetts, Suffolk.

June 24, 1947

May 5, 1947.

Present: FIELD, C.

J., LUMMUS, QUA RONAN, & SPALDING, JJ.

Evidence, Relevancy and materiality. Error, Whether error harmful, Practice Criminal, Exceptions: whether error harmful.

At the trial of an indictment for larceny occurring in March, 1945, where evidence showed that the crime was committed through false pretences as to the source and quality of radio tubes sold by the defendant to a certain purchaser, who paid the defendant for them, it was prejudicial error to admit evidence that in June, 1944, the defendant by false pretences had procured from another prospective purchaser of radio tubes a check payable to the seller and had indorsed the seller's name on the check, and that no tubes were delivered in such transaction: such evidence was of an independent transaction not reasonably near in time to the crime charged in the indictment being tried, nor so similar to or connected with it as to show unity of plot and design and that the transaction was a part of a common plan or scheme to defraud.

INDICTMENT, found and returned on June 6, 1945, charging that on March 7, 1945 the defendant stole money of William E. Andrews in the amount of $8,500.

The indictment was tried before Hudson, J.

S. H. Cohen &amp A.

Di Cicco, Jr., for the defendant, submitted a brief.

Edward M. Sullivan, Assistant District Attorney, for the Commonwealth.

SPALDING, J. In this prosecution for larceny the jury found the defendant guilty. The case was tried under G. L. (Ter. Ed.) c. 278 Sections 33A-33G, and comes here on appeal. The assignments of errors bring before us several questions of evidence.

There was evidence from which the jury could have found these facts: The defendant in March, 1945, represented to one Andrews that he had purchased sixty-five thousand radio tubes from a well known manufacturer for $6,500; that the tubes were army and navy rejects and were all brand new; and that he had about forty thousand of them which he would sell for twenty-two cents apiece. The defendant exhibited to Andrews a bill of sale of the tubes from the manufacturer. Samples of the tubes were then produced and five hundred of them were tested by Andrews and all were found to be usable. Subsequently about forty thousand tubes were sold by the defendant to Andrews under a bill of sale which recited that fifty per cent of the tubes were "guaranteed to be usable." For these tubes Andrews paid the defendant $8,000. Approximately ninety per cent of them turned out to be worthless. The tubes sold did not come from the well known manufacturer as the defendant represented, but were purchased by him from junk dealers for approximately $150. Many other facts relating to negotiations between the defendant and Andrews could have been found but they need not be recited. Those set forth above are all that are material to the questions herein discussed.

The defendant's sixteenth assignment of error raises a question as to the admissibility in evidence of a transaction between the defendant and one Sternlieb. The Commonwealth was permitted against the exception of the defendant, to show through its witness, Sternlieb, that in June, 1944, the defendant obtained $750 from him in the following circumstances. The defendant, who was indebted to Sternlieb, showed him an invoice for tubes from the Raytheon Manufacturing Company and stated that he could get as many tubes as he wanted. He then said, "Here is a chance for me to pay you back what I owe you and give you a profit besides." The defendant then accompanied Sternlieb to a room in a building on Summer Street where he introduced him to one Fisher who, he said, was a "liaison officer for Raytheon Manufacturing Co." In this room there were "a lot of tubes laying around." Later the defendant told Sternlieb that he (the defendant) could purchase the tubes which they had seen at Fisher's for $750. Sternlieb, upon assurances from the defendant that he would be given a bill of sale for the tubes (represented to be between twenty-five thousand and thirty thousand in number) and that the sale was not in violation of the OPA regulations, gave the defendant a check for $750 payable to Fisher. Later, after the check had been paid by the bank on which it was drawn,...