280 Mass. 83 | Mass. | 1932
The defendants Bolusky and Levine were indicted with one Bemick and one McIntyre in two counts charging that they “did steal a quantity of white lead and linseed oil of the value of more than one hundred dollars of the property of the National Lead Company.” In another indictment the same men were charged in a single count, that they “did conspire together to steal” the same property. Trial by jury was waived. The cases were tried together. The judge found Bemick and McIntyre not guilty, but both Bolusky and Levine guilty on the second count of the first indictment and upon the second indictment. The cases are before us upon exceptions to refusals to find Bolusky and Levine not guilty; to refusals to rule as requested; and to certain rulings in the admission and exclusion of evidence.
The Commonwealth specified, orally, that it relied upon, as facts, that the defendants represented that certain buildings and the real estate on which they stood were
It was agreed that the Massachusetts Thread Mills, Inc., and the National Lead Company were corporations duly organized, the former under the laws of this Commonwealth, the latter under the laws of New Jersey; that the goods in question were obtained through the office or agent of the National Lead Company located in New York City. They had not been paid for, and none of them was used in painting by the Massachusetts Thread Mills, Inc.
There was evidence that in consequence of an order given at Boston by Bolusky to a salesman of the National Lead Company, that company shipped three hundred and sixty kegs of white lead and thirty-two drums of linseed oil from New York consigned to the Massachusetts Thread Mills, Inc., at Fall River, where truckmen, after paying the freight, took it away. Lischner, for the Commonwealth, testified that he was engaged in the trucking business at Fall River and knew the defendants. He called at the wharf in Fall River and found in his box a notice relating to the consignment. He had done business for the Massachusetts Thread Mills, Inc. Bolusky spoke by telephone to him, but he went to the wharf because told by his bookkeeper that the Massachusetts Thread Mills, Inc. called him up. He paid the freight before delivery of the goods. His men took two loads to a barn on premises used by the Massachusetts Thread Mills, Inc. He personally delivered one keg at the office of the Massachusetts Thread Mills, Inc., which he “left ... on the top of the stairs and hollered: 'There is a keg.”’ He heard someone say “All right,” but saw no one, and went away at once. He called up one Fitton, who did out of town trucking for him. Subse
The judge admitted questions designed to bring out that the witness had at some time said that the check was Levine’s personal check, and that Remick, Bolusky and Levine were present when he received it. The witness denied so doing. There is no merit in the exception claimed to the ruling admitting the questions and answers. No prejudice resulted. Fitton testified that he received a telephone call from Lischner’s office to send as many trucks as he could to the wharf. He sent two which loaded thirty-two drums of linseed oil. Against objection and exception he was permitted to testify that he had a conversation by telephone with Remick. This was admitted against Remick alone. As he was acquitted, these defendants have no good exception. They were not affected.
Garrity, LeClair and Bell, truckmen employed by Fitton, testified to getting loads of lead and oil at the wharf and taking them to Boston and Winthrop; to making deliveries of portions to the Metropolitan Hardware and Paint Company and the Reliable Hardware Company; and to meeting at Boston a man who looked like Bolusky to whom Garrity gave Fitton’s bill and by whom he was told to “Send it to the Massachusetts Thread.” Other truckmen witnesses testified to getting lead and oil from the barn on premises used by the Massachusetts Thread Mills, Inc., and taking it to Taunton and to Roxbury. There was evidence of sales made at these places of delivery, after negotiations with Bolusky, at prices slightly lower than the price fixed by the order to the National Lead Company. Checks showing payment for these deliveries were introduced in evidence, as were also receipts signed by Bolusky.
The defendants contend that the evidence of dealings with the lead and oil after delivery by the National Lead Company was admitted erroneously. We find no error. There was evidence that on November 26, 1929, Williams, a salesman of the National Lead Company, met Bolusky at the Boston office of Massachusetts Thread Mills, Inc.,
An agent of The New England Steamship Company, which had transported three hundred sixty kegs of white lead and thirty-two drums of linseed oil sent by the National Lead Company consigned to the Massachusetts Thread Mills, Inc., at Fall River, testified that he was in
There was here no error. No request, so far as appears, was made that the evidence be confined to any particular point. The witness could describe the paper check received by him in payment for the freight including the writing upon it. So far, at least, the evidence was admissible, after the failure to produce the paper. Whether the words “M. J. Levine” were upon what was received, if anything was received, was matter of fact. Standing alone such evidence would not support a finding that the words “M. J. Levine” were written by the defendant Levine or bound him as his signature. It was competent, nevertheless, to show that a paper purporting to be a check for $162, and bearing the name of M. J. Levine in the place for a signature was taken by the witness for the freight. The matter was relevant with relation to the alleged contract, which bore the words, “freight allowed.”
It was stipulated that indorsements on the purchasers’ checks given in payment (one of which read “for deposit to the order or credit of M. J. Levine” and another “pay to the order of M. J. Levine”) were in the hand of McIntyre. None showed indorsement by Levine himself. They were admitted only against the defendants whose signatures appeared in indorsements upon them. The defendant McIntyre testified, in substance, that he never discussed the matter of this lead and oil purchase with Levine, Bolusky or Bemick, that he first knew of it from invoices from the National Lead Company which he entered upon the books of the Massachusetts Thread Mills, Inc., of which he was bookkeeper; that, later, he entered the invoices and sales to the various purchasers, still later received checks in payment and made appropriate entries on the books. He testified that from December 1, 1929, to avoid an attachment, the bank account of the corporation was carried in the name of M. J. Levine, who left with him checks signed in blank to be filled as needed under instructions from Gardner,
Evidence was offered by Bolusky that he was directed by Gardner, the manager, to recondition the mills and buy what was necessary; that from newspaper articles seen by him he knew the Massachusetts Thread Mills, Inc., had bought the premises and buildings which it occupied, and that he was directed by Miss Carmody, a clerk at Boston, who asserted she was communicating Gardner’s instruction, to sell the lead and oil, because negotiations for a reorganization and amalgamation with Rosoff interests in New" York had fallen through. This was excluded. He testified, however, that he believed the buildings and premises were owned by the Massachusetts corporation because he had been employed to put the mill in condition, receiving the orders from Gardner, the manager; because the mills were in operation, and making yam, and bore a sign, ““Massachusetts Thread Company”; and because money was being spent by that corporation in improving the property. He testified that he was called up by the clerk from Boston, and sold the paint as a result of the message. No reversible error appears. The defendant had the benefit, through admitted testimony, of the material facts bearing on his intent and good faith. Testimony from him of statements of others was hearsay. What Gardner, Miss Carmody and the newspapers said was clearly hearsay.
The judge properly could exclude the grounds of belief, if he admitted the testimony that Bolusky believed to be true what he had stated to Williams. All that was offered except the newspaper articles was put in evidence in the course of the cross-examination. No good exception lies to the exclusion of testimony which, at a later point in the trial, is eventually admitted.
The defendants contend that there was error in refusing to find them not guilty. In addition to the evidence already stated there was evidence that Remick, McIntyre
The defendants’ contention that no larceny by false pretences had been made out rests on the assumption that there had been a bona fide sale to the Massachusetts Thread Mills, Inc., by the National Lead Company resulting either in passing of title to the former or a retention of title by the latter until payment. They argue that, wherever the title stood as between the corporations, these defendants had no title, and so-, as matter of law, could not be guilty of obtaining property by false pretence. If the title was in either the defendants’ crime, if any, was stealing at common law from the holder of the title.
We need not discuss the subtilties of the argument, because, on the evidence, the judge warrantably could disbelieve the testimony of Bolusky and McIntyre, and find
The defendants’ contention that the statements about the corporation were, at most, only false representations with regard to the credit of the Massachusetts Thread Mills, Inc., and so, under G. L. c. 266, § 35, since they were not in writing, do not support an indictment, is not sound. That statute furnishes no protection to one who makes false statements as to the character, credit and ability of another in order that the speaker may obtain something for himself through reliance placed upon the misrepresentations. Walker v. Russell, 186 Mass. 69. Commonwealth v. Quinn, 222 Mass. 504, 515. It applies where the object is to secure something for that other from the person to whom the representation is made. Here it could be found that no advantage for the Massachusetts Thread Mills, Inc., was sought. False statements with regard to its financial ability could be found to be parts of false pretences designed to defraud for the advantage solely of the defendants in obtaining property for themselves. By its express language the statute applies to “a false pretence relative to the purchaser’s means or ability to pay.” The Massachusetts Thread Mills, Inc., it could be found, was not the purchaser. Neither on the ground that no obtaining by false pretence appeared nor that such false pretences as were made were sheltered by G. L. c. 266, § 35, was a finding of not guilty required as matter of law.
With regard to Levine the evidence is largely inferential. Nevertheless it could properly be found upon the evidence with legitimate inferences from facts which could be found to exist that, although it had another bank account, funds of the Massachusetts Thread Mills, Inc. were held by him intermingled with his own moneys, that all that was received from the several sales of the lead and oil came into his hands, that he furnished the money for payment of the freight, the essential and preliminary step in obtaining control of the goods. Standards of his handwriting were put in evidence. The invoices from the National Lead Company, bills for the goods sold to purchasers, checks in payment from purchasers, were entered on the books of the Massachusetts Thread Mills, Inc. where Levine, as treasurer, could know of them. His statements as given by the witness Gifford could be found to show a knowledge of the transactions, and his advice to Gifford not to worry was equivocal. While close, we think the evidence will sustain a finding of guilt. Commonwealth v. Langley, 169 Mass. 89. We assume that the statement in the record, that "the following stipulation was made” that certain writings on the checks received from purchasers were in the hand of McIntyre, means that the Commonwealth joined in so agreeing and thereby was precluded from claiming the writing, in fact, to be that of Levine. If this assumption be untrue, it was permissible for the judge to find from comparison with standards of Levine’s writing, that Levine indorsed these checks himself and thereby carried the amounts into his personal account. In view of our assumption, we consider such a finding unwarranted and give it no weight.
What has been said- in discussing the other exceptions renders discussion of the refusals to instruct and of the instructions given, in detail, unnecessary. Several of them though in form requests for rulings of law are, in truth, requests for findings of fact. Certain were given with modifications which we find to be proper, limiting the rulings to the facts of these cases. Others rest upon assumptions of fact with regard to a contract by the Massachusetts Thread Mills, Inc., which, as we have stated, could be found not to exist. We have examined them and find no error.
It follows that the order must be
Exceptions overruled.