Commonwealth v. Weston

• Decision Date: 14 March 1922
• Citation: 241 Mass. 131,135 N.E. 465
• Parties: COMMONWEALTH v. WESTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 131

135 N.E. 465

COMMONWEALTH

v.WESTON et al.^*

Supreme Judicial Court of Massachusetts, Suffolk.

March 14, 1922.

Exceptions from Superior Criminal Court, Suffolk County.

Criminal prosecution for conspiracy to steal, larceny, and receiving stolen property, in which Robert D. Weston and another were convicted of receiving stolen property, and bring exceptions. Exceptions overruled.Daniel M. Lyons, Asst. Dist. Atty., of Boston, for the commonwealth.

Edward F. McClennen and Murray F. Hall, both of Boston, for defendants.

JENNEY, J.

The questions involved arose in the trial together of two indictments. The first indictment charged Godfrey L. Cabot, Robert D. Weston, Hector M. Holmes, and Oswin T. Bourdon with conspiracy to steal property of Daniel H. Coakley; at the conclusion of the evidence, a verdict of not guilty was ordered as to the defendants Cabot, Weston and Holmes by reason of a variance. Bourdon had pleaded guilty prior to the trial. Weston, Holmes and Michael J. Hayes were the defendants in the second indictment, which charged the defendant Hayes with larceny, in three counts; the defendant Weston, in two counts, with receiving stolen property knowing it to have been stolen; and Holmes, in one count, with the crime alleged to have been committed by Weston. Hayes pleaded guilty, and a verdict of guilty was returned against Weston and Holmes on the counts in which they were defendants.

The exceptions of the defendants Weston and Holmes, hereafter called the defendants, taken at the trial of the second indictment, have been argued by them and are now considered under five general divisions.

1. As to the sufficiency of the evidence to warrant the jury in finding that the property alleged to have been stolen was of such character as to make it the subject of larceny, as to intent with which the property was taken by Hayes and as to the knowledge of the defendants that the property was the subject of larceny or that its taking constituted that crime:

There was little, if any, dispute as to what had taken place. Weston, when the events occurred, was counsel for the Boston Bar Association in proceedings before a special committee of the grievance committee of that association to investigate among other things the conduct of Daniel H. Coakley, an attorney. Cabot, who was the complainant before the committee, employed Hayes as a detective. Hayes at the instigation of Cabot and Weston secured employment by Coakley in his office in October, 1919. While so employed, Hayes took from Coakley's office copies of letters, an unsigned draft of an affidavit, a copy of a draft of a declaration, some letters relating to a divorce case, a photograph, and a copy of an affidavit of George E. Thompson. Hayes testified that he gave all these, except the copy of the affidavit of Thompson, to Weston, and that this copy was given to Holmes. They were not returned to Hayes. Both Weston and Holmes knew that Hayes had taken them from Coakley's office and the circumstances under which they had been taken. When Hayes took the papers, he did not intend to return them to Coakley. He understood that they were taken to be used in an investigation which was then being held before the subcommittee of the Bar Association.

At a meeting of that committee on July 21, 1920, it appeared that Hayes had handed these articles to Weston and Holmes as hereinbefore set forth. Shortly afterward Weston returned to Coakley the papers. In substance the foregoing is all the evidence relating to the intent with which the papers were taken.

The property claimed to have been stolen is now more fully, although concisely, described. It consisted of copies of letters from Hollis H. Hunnewell to Mabelle Adamson, an unsigned paper in the form of an affidavit, and a draft of a declaration, all of which came into Coakley's possession while he was representing Adamson as her counsel in a claim against Hunnewell, and all of which related to that claim. As a part of a settlement between Adamson and Hunnewell, Coakley agreed to deliver to Hunnewell's attorney any letters which Hunnewell had written to Adamson about which he then knew. There was evidence that these copies were not surrendered because Coakley did not then know of their existence. The other letters and the photograph referred to in the second count of the indictment came into Coakley's possession while he was attorney for a libellant in a petition for divorce, upon which petition a decree nisi had been entered on November 27, 1918, and which decree became absolute six months thereafter. The copy of the affidavit of Thompson related to civil and criminal proceedings in which Thompson had acted as attorney.

Coakley testified that while from an ‘intrinsic point of view * * * the value of the papers would be a dollar or two, counting the expense of making them,’ some of the papers were of value to him because they involved his reputation and were of the value that his reputation was worth to him, that they were of value to him while they were in the possession of Mr. Weston for the reasons just above given, and that the market value was hard for him to state. ‘The market value of copies of the Hunnewell letters was in the hundreds of thousands of dollars, in my opinion, at that time.’ He further testified as to the copies of the affidavit and as to the photograph that they were of no value ‘except the monetary value * * * so that I should say it was a matter of under a dollar,’ but that they were of value to him.

The charge of theft against Hayes in the first count of the indictment was that he did steal ‘two sheets of paper being copies of certain letters, * * * one other sheet of paper being an unsigned affidavit of Mabelle Adamson, * * * one other sheet of paper being a copy of a declaration in the case of Mabelle Adamson v. Hollis H. Hunnewell, * * * the property of one Daniel H. Coakley.’ The second count averred that Weston had received the papers which were described in the first count knowing them to have been stolen. The third count was for the larceny of ‘one letter’ and ‘one photograph,’ both belonging to Coakley. By the fourth count, Weston was charged with receiving a letter and a photograph, the property of Coakley, with knowledge that they had been stolen. The fifth charged Hayes with stealing ‘one affidavit of one George E. Thompson,’ the property of Coakley; and the sixth alleged that Holmes had received that affidavit with the knowledge that it had been stolen.

While a thing stolen must be of some value, it need not be an article having any special, appreciable, or market value. At common law written instruments as such were not the subject of larceny, but prosecutions for the theft of the paper on which they were written frequently took place. Report of Penal Code (Mass.) c. XVII, 4; Rex v. Clark, Russ. & R. 181; 2 Leach, C. L. 1036; Reg. v. Perry, 1 C. & K. 725, 1 Den. C. C. 71, 1 Cox, C. C. 222; Rex v. Bingley, 5 C. & P. 602; Reg. v. Morris, 9 C. & P. 349; Jolly v. United States, 170 U. S. 402, 407, 18 Sup. Ct. 624, 42 L. Ed. 1085;People v. Loomis, 4 Denio (N. Y.) 380;State v. Campbell, 103 N. C. 344, 9 S. E. 410. See Stephen, ‘History of the Criminal Law of England,’ vol. 1, p. 284; Id., vol. 3, 143; Pollock & Maitland, History of English Law, vol. 2, 497. However, where a chose in action constituted a valid obligation, the stealing of which was indictable by statute, it has been held that the ‘piece of paper’ was absorbed in it, and that an indictment for its theft must describe it as such. Queen v. Watts, 2 Den. C. C. 14; Queen v. Powell, 2 Den. C. C. 403; State v. Campbell, supra. See Commonwealth v. Brettun, 100 Mass. 206, 97 Am. Dec. 95. In Commonwealth v. Riggs, 14 Gray, 376, 378,77 Am. Dec. 333, Metcalf, J., said:

‘It was sufficient for conviction, that the property alleged to be stolen should be shown to be of some value, at least to the owner, if to no one else-things of no value not being the subject of larceny.’

So a conviction of stealing a paper writing called a discharge from military service of the United States was upheld in a case where there had been no direct evidence of value. Commonwealth v. Lawless, 103 Mass. 425. See Commonwealth v. Burke, 12 Allen, 182. And in Commonwealth v. Brettun, supra, 100 Mass. at page 207, 97 Am. Dec. 95, Chapman, C. J., said:

‘An indictment is also good which alleges a larceny of a piece of paper, alleging its value, without any further description.’

In that case, the defendant was convicted of the larceny of ‘one promissory note of the value of three hundred dollars, and one piece of paper’ of the same value, ‘of the goods and chattels' of one Anthony.

The jury properly could find that the papers alleged to have been stolen were of some value. So far as at variance with this conclusion, Panye v. People, 6 Johns. (N. Y.) 103, is not followed. In considering a wholly different subject, it has been said:

‘Many papers, having no pecuniary value to others, are of the greatest possible value to the owners and are property of a most important character.’ Gouled v. United States, 255 U. S. 298, 310, 41 Sup. Ct. 261, 265 (65 L. Ed. 647). See, also, Baker v. Libbie, 210 Mass. 599, 97 N. E. 109,37 L. R. A. (N. S.) 944, Ann. Cas. 1912D, 551;Commonwealth v. Dana, 2 Metc. 329;Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746.

Although all the counts did not describe the things alleged to be stolen as sheets of paper, that does not aid the defense. The defendants did not by appropriate action raise any question as to the sufficiency of the description of the articles mentioned in the indictment. If a further description had been necessary, the prosecution would have been compelled to file a statement of the particular nature and ground of the crime charged. G. L. c. 277, § 40. The defendants were not entitled to an acquittal because the theft was alleged to be of a letter or an affidavit instead of sheets...