232 Mass. 588 | Mass. | 1919
, 1. We are of opinion that the second count of the indictment on which the defendant was convicted is a sufficient indictment charging the defendants therein named with the continuing offence of having conspired to receive stolen automo
The ground on which the defendant contends that the indictment was not sufficient is that the act to provide for the simplification of criminal pleadings, St. 1899, c. 409 (now re-enacted in R. L. c. 218), does not apply to common law offences. The contention is without merit. The indictment in question is a sufficient indictment under that act having reference to the sections of the. original act which are now re-enacted in R. L. c. 218, § 67, and §§ 17-22, 34, 38, 39.
2. The defendant has contended that the indictment ^is bad because it charges a mere attempt or preparation to commit a crime. His contention is that the crime of conspiracy has two distinct elements, one of combination and the other of attempt, and that these two elements must combine in order to make out the completed offence. The contrary was decided by this court in Commonwealth v. Judd, 2 Mass. 329. In that case this court said at page 337, “After fully considering the several cases, the court are satisfied that the gist of a conspiracy is the unlawful confederacy to do an unlawful act, or even a lawful act for unlawful purposes; that the offence is complete when the confederacy is made, and any act done in pursuance of it is no constituent part of the offence, but merely an aggravation of it.” That case is still the law of the Commonwealth. Commonwealth v. Warren, 6 Mass. 73. Commonwealth v. Hunt, 4 Met. 111, 125. Commonwealth v. O’Brien, 12 Cush. 84, 89. Commonwealth v. Fuller, 132 Mass. 563, and cases there collected.
3. The judge was right in excluding the testimony of the telephone operator offered by the defendant. No evidence was offered as to the identity of the person who talked over the telephone to the operator. The whole matter is stated accurately in Wigmore on Ev. §2155, in these words: “No one has ever contended that if the person first calling up is the very one to be identified, his mere purporting to be A is sufficient, any more than the mere purporting signature of A to a letter would be sufficient.” And that is the rule acted upon in the only cases which have been brought to our attention. Dunham v. McMichael, 214 Penn. St. 485. Murphy v. Jack, 142 N. Y. 215.
4. The exception taken to the refusal of the judge to make the
It appeared that Trask, Moses, Aronofsky and Ward "were indicted either separately for larceny and receiving stolen goods, or together with this defendant Harris for conspiracies to steal, receive or become accessories to the stealing of automobiles, or receiving automobiles knowing them to have been stolen.”
The ruling hardly could have been given in the terms of the request. The presiding judge could hardly have told the jury that these witnesses as matter of law were “under the strong bias of self-protection and hope of immunity” and that “this bias should be taken into account by the jury in weighing their testimony.” The defendant was entitled to have the jury told that they might consider whether these witnesses were "under the strong bias of self-protection” and that they might take that into account in weighing their testimony and that was in effect what the jury were told. The presiding judge instructed the jury in these words: “As to both of the cases, consider carefully whether the various witnesses who have come before you, or any of them, are dominated by prejudice — prejudice against Harris, prejudice against Trask, prejudice against any other person connected with this case. Consider whether they are biased in favor of any witness in this case. Are they under any promise of some sort, of future benefit or anything of that sort? Are they under financial obligation to anybody connected with the case? All these things you may take into account in weighing the testimony of the various witnesses who have appeared before you. And in this connection I say to you that so far as the testimony of those who are under indictment reveals a tendency to place the guilt upon the shoulders of Harris rather than upon themselves, you may take that into account as bearing upon the weight which you should give to the testimony which they have offered to you.”
5. We have examined all the cases cited by the defendant and find nothing in them which requires notice.
Exceptions overruled.