Commonwealth v. Johnson

Nov 25, 1924
Reporters:
, ,
Before:
Braley
Braley, J.

The complaint on which the defendant was tried and convicted charged him with stealing on February 7, 1923, fifty-nine pounds “ of rib roast of beef of the value of less than three hundred . . . dollars of the property of G. F. Richardson.” G. L. c. 266, § 30. The record fails to show any evidence either direct or circumstantial tending to support the verdict of guilty. The order of proof is immaterial. A witness for the Commonwealth, one Cornelius F. Driscoll, testified, that he was the proprietor of an express business and was present when an automobile was loaded with six packages, two bundles weighing about seventy pounds, a large bundle weighing about two hundred and four pounds and three bundles which he estimated weighed about sixty or seventy pounds each. The express charges at that time were twenty-five cents for bundles weighing less than one hundred pounds, and fifty cents for bundles weighing more than one hundred pounds, and that he had the defendant “Johnson’s signature on his consignee’s sheet for February second.” But, the sheet having been produced, the signature of Johnson was not found. James Driscoll, son of Cornelius and employed by his father as a chauffeur, testified, that on February 7, 1923, there were three bundles of meat and three boxes on the automobile which he was driving, two bundles and three boxes of which were marked “ H. Johnson,” and one bundle to which a tag marked “ G. H. Richardson ” was attached, and that he did not know the contents of this bundle. The witness, when he arrived at *323the defendant’s store, did not leave the truck, but passed the six bundles to his helper who delivered them. The following Monday he spoke to the defendant about receiving on Friday night a bundle marked “ G. H. Richardson.” The defendant denied having received the bundle, and the witness went into the cellar of the store “and looked for coverings, but could find none bearing the tag G. H. Richardson.” Alexander T. Javie, also an employee of Cornelius, who was with James Driscoll at the time, testified, that he and one other man carried all six bundles from the truck to the store, and laid them on the floor, and that he did not know what the bundles contained. The defendant complained of the express charges, and told his partner they were too much and not to pay them. The evidence of Louis Beckerman, a third employee, in so far as material was the • same as the evidence of Javie.

This evidence for the prosecution was in no way enlarged or strengthened by the testimony of the defendant and his witnesses, who in substance denied that a bundle whose contents were unknown, or a bundle tagged “ G. H. Richardson” was delivered; nor was there any proof that “ G. H. Richardson” or G. F. Richardson had any property either general or special in the bundle, or that the defendant got possession of the bundle to his own use by fraud with intent to convert it. Commonwealth v. Rubin, 165 Mass. 453.

The question presented is not a question of variance, which in some cases may riot be fatal under G. L. c. 277, § 35, but is one of error going to the merits of the accusation. Commonwealth v. Strangford, 112 Mass. 289, 291, 292. The defendant’s request, that “ on all the evidence the verdict must be not guilty ” should have been given.

At the close of the instructions, the defendant asked the judge to instruct the jury, that he came into court with a presumption of innocence in his favor. The request was denied, and the defendant excepted. But, even if no request in writing had been made before the arguments to the jury were begun, the defendant well might assume that this fundamental principle under our law would be stated. Very plainly justice to the defendant called for such instruction, *324and, the attention of the judge having been directed to the omission, it should have been given. Commonwealth v. Anderson, 245 Mass. 177, 190. Mahoney v. Gooch, 246 Mass. 567, 571.

We do not find it necessary to consider the remaining exceptions to the denial of the second, third, fourth, fifth and sixth requests, or to the instructions.

Exceptions sustained.