Commonwealth v. McDermott

255 Mass. 575 | Mass. | 1926

Wait, J.

The United Wholesale Grocery Company, a voluntary trust carrying on business at Worcester, employed the Hildreth Trucking Company to transport goods from Boston to Worcester. The trucks both going and coming passed through Waltham. Certain drivers of the trucks, from September, 1923, until the State police interfered on October 11,1924, made a practice of selling part of the lading of their trucks belonging to the grocery company to the defendant, McDermott, a storekeeper in Waltham, for cash or for liquor. They either left the goods with him en route from Boston to Worcester, or, having arranged a sale, brought him the goods on their return from Worcester, and they received from one Reines, the receiving clerk of the grocery company at Worcester, slips acknowledging the receipt by the grocery company of the entire ladings which had been placed upon the trucks at Boston. In most cases McDermott paid the drivers; but a few times he made payment to Reines.

The Commonwealth sought to prove these transactions to be a criminal conspiracy between McDermott, the truckmen and Reines to steal or to receive stolen goods; and to be larceny or receiving of stolen goods by the several participants.

An indictment was returned against McDermott, the purchaser, Bourget, Carter, Gibree, Willand, Schackett, Adams, Morrell, LaVallee, truck drivers, Reines, the delivery clerk, and one Linsky, another Waltham tradesman, charging, in its first count, that they conspired to steal goods of the grocery company, and, in its second count, that they conspired to buy, sell and aid in the concealment of stolen property belonging to the company.

An indictment also was returned against McDermott charging him in half of the two hundred and eighty-two counts with larceny of goods of the company in specific amounts and at specified times, and in the other half with buying, receiving and aiding in the concealment of stolen property. Bourget, Morrell, Carter, Schackett and Willand pleaded guilty to the conspiracy and also to separate indictments for larceny. LaVallee pleaded guilty to larceny but not guilty to the conspiracy. McDermott, Reines, LaVallee and Linsky were placed on trial together; all but LaVallee for both conspiracy and for larceny and receiving stolen goods. Linsky was found not guilty. McDermott, Reines and LaVallee were found guilty of conspiracy to commit the crime of receiving stolen goods, and McDermott, besides, was found guilty on one hundred and seventeen counts for receiving stolen goods.

McDermott saved exceptions to the admission of evidence, to refusals to instruct the jury as requested, to refusals to direct a verdict of not guilty of conspiracy and on the counts alleging larceny, and to certain portions of the charge to the jury. We shall deal with them, not in detail, but with reference to the contentions of his brief.

The police interfered on October 11, 1924. Within a day or so thereafter, Reines, who, as his employer testified, had a remarkable memory, began the preparation of a fist of the amounts taken with the date of the taking and the name of the driver concerned. He had memoranda kept by him of some of the happenings. On October 15 he pointed out from the receiving books of the grocery company items which had gone to McDermott. He prepared on yellow sheets lists of the items. These, on October 20, he compared and checked with the books of the Hildreth Trucking Company, and a schedule was made up with dates, goods and names of truckmen, of merchandise which had been shipped by Hildreth Trucking Company from points in Boston to the grocery company in Worcester and which he had receipted for as delivered to that company but which in fact never was so delivered. This schedule he certified and marked on each sheet with his initials, as of October 17, 1924. His original memoranda he destroyed and the yellow sheets do not appear. This schedule was offered in evidence. On objection by McDermott and Linsky, it was admitted as against Reines alone. It was used as Exhibit 2, during the trial, as a basis of questions put to witnesses and, apparently, as a guide in proof.

Somewhat similar schedules were prepared dealing with the sales and deliveries made by the drivers, who talked them over with Reines and the officers acting for the Commonwealth in investigating the matter and preparing for trial. There was considerable evidence of statements made by Reines in regard to these schedules.

Succinctly stated, McDermott’s contentions are that he should have a new trial because the judge failed accurately to define to the jury the limits within which a declaration of an alleged conspirator can be used against another; because he permitted certain schedules to be used in refreshing the memory of witnesses, and because he refused to permit certain cross-examination.

First, in regard to the questions excluded in cross-examinatian. They were intended to affect the credibility of the witnesses by showing pleas of guilty to indictments which contained charges of which they were ignorant, or items inconsistent with testimony given upon the stand. While not absolutely immaterial, the evidence fell within the class where the discretion of the judge in controlling the limit of cross-examination applies, and where, in the absence of abuse, the exercise of that discretion will not be interfered with. Commonwealth v. Russ, 232 Mass. 58, 78, 82. Commonwealth v. Kaplan, 238 Mass. 250, 255. Commonwealth v. Sacco, 255 Mass. 369, 439.

Next, in regard to the refreshing of memory. Certain of the truck drivers pleaded guilty to indictments charging them with larceny and conspiracy. In the investigation by the police, and in the preparation of the cases for trial, as has been stated, they had prepared schedules of dates and items of deliveries by themselves to McDermott, or had gone over and checked up schedules prepared by Reines or by others in conjunction with him, in relation to such deliveries. They were permitted to use these schedules to refresh their memories while testifying for the Commonwealth at this trial.

The rule in this Commonwealth is that any paper which in fact refreshes the memory of a witness may be used by him for that purpose. It is immaterial that the paper is not contemporaneous with the event it records, or that it was not made by the witness. Coffin v. Vincent, 12 Cush. 98. Dugan v. Mahoney, 11 Allen, 572. Commonwealth v. Ford, 130 Mass. 64, 67. Costello v. Crowell, 133 Mass. 352. Mayberry v. Holbrook, 182 Mass. 463. Commonwealth v. Burton, 183 Mass. 461, 470. Holden v. Prudential Ins. Co. of America, 191 Mass. 153, 158. Allwright v. Skillings, 188 Mass. 538. Fay v. Walsh, 190 Mass. 374, 377. See also Kaplan v. Gross, 223 Mass. 152, 155.

Last, in regard to the declarations of a conspirator.

It is well settled that declarations made by one conspirator in the course of the conspiracy, before it has come to an end in failure or success, are admissible in evidence against the other conspirators. The jury must be satisfied that a conspiracy existed; that it had not come to an end when the declaration was made; that the speaker and the person against whom the declaration is offered were members of the conspiracy; then they can give evidentiary effect to the declaration against other conspirators. Commonwealth v. Brown, 14 Gray, 419. Commonwealth v. Rogers, 181 Mass. 184, 193. Commonwealth v. Stuart, 207 Mass. 563. Attorney General v. Pelletier, 240 Mass. 264, 312. Declarations, admissions, confessions made after the conspiracy has ended bind only the maker; and cannot be used in evidence against other members of the conspiracy not present when they were made. Commonwealth v. Rogers, supra. Under this rule of law Exhibit 2 was not admissible in evidence against McDermott. It never was admitted in evidence against him. The defendant McDermott was entitled to a clear instruction that although properly in evidence to be weighed in regard to the guilt or innocence of its maker, Reines, it was not to be used as evidence to affect McDermott. It was made after the conspiracy charged had ended, and it was a mere narrative. The judge was right in refusing to strike it from the evidence. Commonwealth v. Bingham, 158 Mass. 169, 171. He was right in refusing to rule that declarations of Reines whenever made were inadmissible against McDermott. He was right in much that he charged the jury in regard to such declarations, and to Exhibit 2. There are, however, objectionable passages in the charge which were called by counsel to the attention of the judge and which, if they stood alone, would require us to sustain his exception. The judge ignored the qualification that once a conspiracy has ended, the declarations of a conspirator made afterward are not evidence against other alleged members of the conspiracy.

The defendant, however, attributes much greater value as evidence to Exhibit 2 than it is entitled to. There was plenary evidence of his guilt if Exhibit 2 is utterly disregarded. We do not see how its absence could have changed the result of the trial. Its use to refresh the memory of witnesses, though they testified against McDermott, was legitimate. Reines, Bourget, Willand, Sehackett, Morrell, LaVallee, testified of their own personal knowledge to acts and sayings of McDermott connected with sales and payments for goods which they admitted they had stolen and conspired to steal, which, if believed, placed his guilt beyond a doubt. He admitted having acquired the goods. His explanations were no less plausible by reason of the existence of Exhibit 2.

If the charge was confused with regard to Exhibit 2, or if the judge gave less importance to the exhibit than the defendant’s motions and requests for rulings sought to attribute to it, the error does not require that we should sustain the exceptions. Commonwealth v. Dascalakis, 243 Mass. 519; S. C. 246 Mass. 12.

We have examined all the exceptions and find no reversible error. The order will be

Exceptions overruled.