Commonwealth v. Torrealba
| Decision Date | 26 April 1944 |
| Citation | 54 N.E.2d 939,316 Mass. 24 |
| Parties | COMMONWEALTH v. JENNIE TORREALBA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 3, 1944.
Present: FIELD, C.
J., LUMMUS, QUA DOLAN, & WILKINS, JJ.
Larceny. Joint Enterprise.
Practice, Criminal Reading of indictment. Pleading, Criminal, Indictment. Evidence, Relevancy and materiality, Business record, Absence of fact.
Permitting the reading to the jury at the opening of a criminal trial of an entire indictment as returned, including nine aliases of the defendant stated therein, disclosed no error although the evidence later introduced established only one of the aliases.
It is not a desirable practice to include in an indictment numerous aliases of the defendant where they are not a necessary element of the crime charged and are not required for the establishment of the identity of the defendant. Per WILKINS J.
Evidence that two women, jointly indicted in several counts for stealing articles of the value of less than $100 at different stores entered and left the stores together, that shortly thereafter, while they were still together, some of the articles were found in the possession of one of the women and some in the possession of the other, and that the articles had been stolen from the stores, warranted a finding that the women had engaged in a joint enterprise of shoplifting and warranted conviction of both defendants on all counts.
At the trial of an indictment for stealing from a store, where there was evidence that articles from the store without sales slips accompanying them were found in possession of the defendant shortly after he had been in the store, the manager of the store properly was permitted to testify that it was the custom at that store to give a sales slip with each purchase, and that he had examined the record of the cash register on the occasion of the alleged theft and that it did not show a sale of such articles.
INDICTMENT, found and returned on June 7, 1943. The case was tried in the Superior Court before Beaudreau, J.
S. H. Lewis, (H.
L. Barrett with him,) for the defendant.
G. E. Thompson, Assistant District Attorney, for the Commonwealth.
The defendant and one Mary Russo were indicted, tried together and convicted on four counts charging them with stealing articles of the value of less than $100.
1. Each count alleged that the theft was committed by "Mary Russo and Jennie Torrealba, otherwise called Jean Parker, otherwise called Jennie Delfino, otherwise called Olive Parker, otherwise called Jean Bartholomew, otherwise called Jennie Andrews, otherwise called Jennie Murphy, otherwise called Olive Gerard, otherwise called Jennie Castalucci, otherwise called Jennie Andreosi." After the jury were empaneled and before the indictment was read, counsel for the defendant objected to the reading of the aliases. The judge directed the clerk to read the indictment as written, and the clerk did so subject to the defendant's exception. The defendant was referred to by witnesses both as Jean Parker and as Jennie Torrealba. There was testimony that the defendant, when asked her name by a police officer, replied, "Tagnelion," and then answered in the affirmative a further question as to whether she was also known as Jean Parker. Other than that, there was no evidence in proof of the aliases. The defendant offered no testimony, and rested at the close of the Commonwealth's case without asking any further ruling on this point. The defendant contends that this is not a mere matter of fictitious or erroneous names, which is not even ground for abatement (G. L. [Ter. Ed.] c. 277, Section 19), but more fundamentally that she was prejudiced by the reading of the aliases, which were in no way essential to the proof of the crime charged, and that their use unsupported by testimony might well account for her conviction. It is obvious that it is not a desirable practice to include in an indictment numerous aliases which are not an allegation of a necessary element of the crime charged or which are not required for the establishment of the identity of the defendant, even though, as here, the actual names are harmless in themselves. The exception was to the refusal of the judge to interfere with the reading of the whole indictment. In this there was no error. At that point in the trial it could not have been assumed that there would be no evidence in support of the aliases, nor was the judge obliged to ask the district attorney for assurance that there would be such evidence. In order to raise the question of the absence of proof, the defendant should have directed the judge's attention to the matter by appropriate requests for instructions. Without intimating that the denial of such requests would have been error, we are unable to agree with the defendant's contention that her conviction might well have been brought about by the use of the aliases, only one of which was proved. The evidence of guilt was extremely strong. On the uncontradicted testimony the property alleged to have been stolen was recovered from the possession of the defendant and her companion, both of whom could have been found to have given a false account of their doings to the police. See Commonwealth v. McDermott, 255 Mass. 575 , 582.
2. The defendant also excepted to the denial of motions for a directed verdict of "Not Guilty" on each count. These exceptions must be overruled. The first, second, third, and fourth counts respectively charged the theft on June 5, 1943, of two skirts and five blouses, the property of Gorin's Incorporated; five shirts and one table cloth, the property of W. T. Grant Company; two shirts, the property of Enterprise Stores Incorporated; and one lounging robe, the property of Everett Department Stores. The testimony for the Commonwealth tended to show the following: On June 5, 1943 about 2:45 P.M., Mary Russo and the defendant were seen by two detectives to leave the defendant's house in Somerville and proceed in an automobile driven by the defendant to the vicinity of Everett Square, where the automobile was parked about 3 P.M. The two women walked toward Everett Square. The defendant carried a large, light colored cloth handbag and a pocketbook; and Mary Russo carried a small bag and a paper shopping bag. At 3:10 P.M. they entered the Enterprise store, where the defendant was observed by one detective purchasing a shirt for which she paid. Mary Russo was standing beside her. The defendant, carrying the package she had purchased, and her companion then left the store and walked to and entered the Everett department store. They were next observed in front of Gorin's department store. At that time the defendant was carrying the cloth shopping bag. The two women then went to Grant's store, which they entered at 3:20 P.M. They were seen in the store together. They remained about five minutes, and then came out and walked along the street. Upon seeing a police officer and one of the detectives they stopped and started to walk across the street. It was to the officer at this time that the defendant gave the name of "Tagnelion," and said that she was known as Jean Parker. The defendant was still carrying the cloth bag and a small black bag, and Mary Russo was carrying a small brown bag and a paper bag folded. The defendant was asked what she was carrying in the bag, and she said she was carrying it for her friend. The two women were then asked to go to the police station for inspection of their bags. On the way Mary Russo dropped five shirts bearing the label of Grant's store. At the station house the cloth bag carried by the defendant was found to contain five blouses and two skirts bearing the label of Gorin's store and a wallet containing $244. The...
To continue reading
Request your trial