317 Mass. 309 | Mass. | 1944
These defendants were convicted after a trial of three indictments, each one of which charged one of the defendants separately with receiving stolen property. These indictments were tried together with a similar indictment against one Talbert, who was acquitted. The trial was held in accordance with G. L. (Ter. Ed.) c. 278, §§ 33A-33G, as amended. The defendants have assigned various errors.
The second error assigned by Marcus and the first error assigned by Noiseux are based upon the refusal of the
The election of one charged with a crime to be tried by a judge without a jury could not be effectually exercised prior to the enactment of St. 1929, c. 185, § 1, which was the original form of what is now G. L. (Ter. Ed.) c. 263, § 6, as amended, conferring jurisdiction on the Superior Court to hear criminal cases where a defendant waives trial by jury. Commonwealth v. Rowe, 257 Mass. 172. Commonwealth v. Millen, 289 Mass. 441. DeGolyer v. Commonwealth, 314 Mass. 626. But as the original statute read, a defendant could not waive a jury trial unless all the defendants did so. The purpose of this provision was to avoid double trials. This provision was evidently considered as placing too great a limitation upon a defendant’s right to be tried without a jury, and by virtue of the amendment, St. 1933, c. 246, § 1, he was not to be deprived of that right by the failure of other defendants to waive a jury trial unless the offences with which the defendants were charged arose out of “the same single chain of circumstances or events.”
Marcus and Noiseux each contend that the crimes with which he was charged did not arise out of the same single chain of circumstances as the crimes with which the other three defendants were charged. They point to the indictments as charging separate and independent offences. But the indictments were sufficient in form, and there was no occasion to allege any connection between the crimes al
Marcus operated two restaurants. One Grace Bouchard, who was employed at the diner of the defendant Noiseux and had been previously employed by Marcus, telephoned Marcus on November 14, 1943, that two men were at the diner who had seven tubs of lard. Marcus agreed to buy them. She told these men, who. could have been found to be Conant and Landry, to deliver three tubs to one res
All the defendants based an assignment of error on that portion of the instructions to the effect that it was not necessary for the Commonwealth to prove that the defendants knew that the property had been stolen, that it was enough if the Commonwealth proved that a person of reasonable intelligence and caution would have believed that the property had been stolen, and that, if the circumstances were such that a reasonably cautious and prudent man would have been satisfied that it had been stolen and would have refused to buy it, or would have made further inquiry, then the defendants must be found guilty.
The defendants were indicted for a violation of G. L. (Ter. Ed.) c. 266, § 60, which provides a penalty for anyone .who “buys, receives or aids in the concealment of stolen or embezzled property, knowing it to have been stolen or embezzled.” The infraction of this statute is not proved by negligence nor by failure to exercise as much intelligence as the ordinarily prudent man. The statute does not punish one too dull to realize that the goods which he bought honestly and in good faith had been stolen. Guilty knowledge upon the part of a defendant that the property had been stolen is a prerequisite of a violation of the statute. A man’s intention or knowledge is a matter of fact which ordinarily cannot be proved by direct evidence and resort frequently must be had to proof by inference. It is in this respect that the attending circumstances known to a defendant are important as tending to show that he possessed knowledge that the goods had been stolen, or at least as inducing a belief that they had been stolen; but whatever the circumstances were, if the defendant did not in fact know or believe that the property had been stolen, he cannot be found guilty. The knowledge or belief of the defendant must be personal to him and our statute furnishes no substitute or equivalent. The instruction in the present case was based upon a statement in Kemp v. Hammond
The third and sixth errors assigned by Marcus are based upon rulings on evidence, and as both questions are likely to arise at the next trial they should now be considered.
Marcus, before his arrest, was interviewed by a police officer with reference to his dealings with Conant. Conant appeared during the interview, and stated that Bouchard knew the goods, which Marcus later received, had been stolen because she (Bouchard) heard Conant tell the day man at the diner, where the goods were stored and where Bouchard was employed, the place from which he got these goods. It appeared that Marcus did not reply to this statement of Conant. Marcus excepted to this part of the interview, together with the fact that he made no reply thereto, being introduced in evidence at the trial. A man is not bound to answer or explain every statement made by anyone in his presence if he wishes to prevent his silence from being construed as an admission of the truth of the matters contained in the statement, even "though the statement contains something adversely affecting his rights. Larry v. Sherburne, 2 Allen, 34. Gray v. Boston Elevated Railway, 215 Mass. 143. Evidence of one’s silence, offered as showing an implied admission on his part of facts included in an oral statement made in his presence, is to be received and applied with caution. The competency of such evidence is subject to well settled limitations. Whether the failure to reply may properly be regarded as a tacit admission of the matters stated depends upon whether the person to whom the statement is directed heard and understood it and “whether the truth of the facts embraced in the statement is within his own knowledge, or not; whether he is in such a situation that he is at liberty to make any reply; and whether the statement is made under such circumstances, and by such persons, as naturally to call for a reply, if he did not intend to admit it.” Commonwealth v. Kenney, 12 Met. 235, 237. Commonwealth v. Brown, 121 Mass. 69, 80. Commonwealth v. Simpson, 300 Mass. 45, 51. Commonwealth v. Cheng, 310 Mass. 293, 297. Common
There was no error in striking out the evidence of Mann, who, after testifying that the reputation of Marcus for honesty was good, then admitted that he had never heard his reputation discussed. He was not qualified to testify to a fact of which he had no knowledge. Commonwealth v. Lawler, 12 Allen, 585. Walker v. Moors, 122 Mass. 501. Commonwealth v. Rogers, 136 Mass. 158. Commonwealth v. Porter, 237 Mass. 1. Clark v. Eastern Massachusetts Street Railway, 254 Mass. 441. We do not decide that the good reputation of a man may not be shown by the absence of discussion of his character in the particular community in which he lives. Day v. Ross, 154 Mass. 13. But though the witness lived in the same city with the defendant Marcus, he is not shown to have been a member of the same community with him in such a sense as to give him familiarity with his reputation. c
T ,7 , , Judgments reversed.