Commonwealth v. FoleyCommonwealth v. Foley
- Reporters:
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- Before:
- Spiegel
Thе defendant was convicted on a complaint charging him with being in possession of an altered motor vehicle license. He was also convicted on two counts of an indictment. The first count charged him with buying, receiving or aiding in the concealment of twenty-eight interest coupons, thе property of The First National Bank of Boston. The second count charged him with buying, receiving, or aiding in the concealment of two United States Treasury bonds, the property of one Raco [sic] Theodore. The cases were tried under the provisions of
We summarize relevant portions of the evidence. Jоseph Gibbons, a detective of the Boston police department, was investigating the loss of seven bags of mail which on June 4, 1968, were stolen from a truck en route to an office of The First National Bank. Included in these bags were the twenty-eight interest coupons referred to in the indictmеnt. During the course of and as a result of the investigation, Gibbons went to the area of Isabella Street in Boston looking for one Ugo Saitto, whom he wanted to question about
Several weеks later Gibbons was informed by Lieutenant Daley of the State police that someone had opened an account in the name of Reiko Theodore at the Middlesex County National Bank. No one named Reiko Theodore lived at the address which had been given. On July 18, 1968, Daley told Gibbоns that someone would attempt that day to make a deposit of the missing coupons in the Theodore account. Gibbons did not conduct аn independent investigation of Daley’s “tip,” nor did he know the basis of Daley’s information. He went to the bank and waited there until the defendant enterеd and handed a clerk some coupons and two United States Treasury bonds to deposit in the Theodore account. The defendant identified himself to the clerk as Joseph Russo. Gibbons then arrested the defendant without a warrant and searched him. During the search, an altered motor vеhicle license was discovered. The defendant told Gibbons that he carried the altered license because his license had been susрended and he needed it to drive his children to school.
¡SfAt the trial an assistant vice-president of the bank testified that he had identified the coupons as those that were
At the outset we comment regarding the assignments based on allеged errors to which no exceptions were taken at the trial. The defendant asks us to consider these assignments and cites our opinion in thе case of Commonwealth v. Freeman, 352 Mass. 556, 564. That case, however, is readily distinguishable from the cases at bar. As we stated in our opinion in that case, “The test is whether therе is a substantial risk of a miscarriage of justice.” We have reviewed the entire record and are of opinion that there is no such risk in the instant cases. For us to consider alleged claims of error in cases where no exceptions were taken would deprive the trial judge of thе opportunity to reconsider his ruling. It would make a shambles of our trial procedure to consider such assignments of error except in rarе and unusual circumstances.
We feel impelled to voice our disapproval of the constantly growing practice of certain сounsel arguing alleged errors of the trial judge where no exceptions were taken. Many of the arguments border on the specious and impose an unnecessary burden on this court. As we have held many times before, “an assignment of error not based on an exception brings nothing to this court for review.” Commonwealth v. Myers, 356 Mass. 343, 346.
In the instant cases we discuss only those two assignments in which exceptions to an alleged error were taken. The first assignment relates to the judge’s refusal to suppress certain evidence obtained as a result of the arrest of the defendant. The defendant contеnds that the altered motor vehicle license found in the search was seized illegally and
We are of opinion that on the basis of all of the information available to Gibbons, including the information given to him by Lieutenant Dаley, there were sufficient grounds to support a finding that Gibbons had probable cause to believe in the defendant’s guilt. Therefore there was nо error in refusing to suppress the altered motor vehicle license found in the search. In so far as the coupons and bonds are conсerned they were not even “developed” as a result of the search, but had been delivered by the defendant to an employee оf the bank.
The other assignment is based on the denial of the defendant’s motion for a directed verdict. He maintains that the only evidence that the coupons which he attempted to deposit were the stolen coupons is the bank official’s testimony that depositors had told him they hаd not been credited with the coupons they deposited. He argues that because this evidence is hearsay it is not sufficient to prove that the coupons were stolen, even though no objection was raised at the trial to the introduction of this evidence. We do not agree. By failing to object the defendant has waived his right to confrontation. As we said in Peterson, petitioner, 354 Mass. 110, 116, “Where hearsay evidence is admitted without objection it is entitled tо its full probative force.”
Judgments affirmed.
Notes
There was testimony by the defendant that on the day of his arrest Saitto was in the hospital and that he was making the deposit as a favor to Saitto. He said he had attempted to locate Saitto and have him testify at the trial but was unsuccessful. The defendant also said that he had been known by the name of Joseph Russo for approximately six years.