Commonwealth v. Middleby, 187 Mass. 342

Commonwealth v. Middleby

187 Mass. 342 | Mass. | 1905

Loring, J.

1. The presiding judge was right in refusing to rule as matter of law that only the sugar was attached. The ground on which the defendants support their contention here is that the only interpretation which could be put on what took place was that the officer determined to and did take into his possession nothing but the sugar because he was frightened by Joseph Middleby’s notice that some of the property was not his, although it turned out that the sugar was worth no more than $500 to $600 and the ad damnum of the writ was $2,000. We are of opinion that the jury were warranted in finding that the sheriff took into his possession and left in the custody of the keeper all the stock in trade on the first floor of the store at least, with instructions to release such articles as Middleby wished to ship away before they were scheduled, but not to release the sugar.

The exception to so much of the charge as deals with the question whether more than, the thirty-one barrels of sugar were attached must be overruled.

Whether Martin took into his possession and kept in his custody more than the sugar was a question of fact depending on the inferences to be drawn from the evidence, and properly was left to the jury.

*3472. The presiding judge did not tell the jury that the question of what was attached depended upon what Middleby understood was attached. What he did tell the jury was that in determining what took place they could consider what was said or what was not said at the time by Middleby. That is all that was meant by the presiding judge when he fold the jury that they might consider whether or not, “ if it had been understood by the owner of the property that nothing was attached but the sugar, . . . some remark of that kind would not have been made.” This particular matter was not brought to the attention of the judge. If the defendants thought that this was misleading they should have brought it to the judge’s attention, so that it could he stated more plainly.

3. So of the exception to that portion of the charge in which the judge, in instructing the jury as to whether more was attached than the sugar, asked them whether the fact that more was attached was made known to Joseph Middleby. Also in telling them that in considering what effect was to be given to what was done they could take into consideration all the circumstances including the prior negotiations for a bond. An officer cannot make an attachment by an undisclosed mental process. Whether the officer did take possession of more than the sugar was a fact. That was what was meant by this portion of the charge, and here again this particular matter was not brought to the attention of the judge to be corrected if not altogether plain.

4. Joseph Middleby properly was not allowed to testify as to how long a time would be required to take out from the store thirty-one barrels of sugar and one load of pie filling and to put them on the wagons. In the first place the deputy sheriff was not bound to remove the goods attached before making a schedule of them, and in the second place the question in regard to handling the goods with which the jury had to deal was not how long a time would be required by an experienced shipper familiar with the premises, but how long a time would be taken by a deputy sheriff and his assistants.

5. The question of unreasonable delay properly was left to the jury under all the circumstances, including Middleby’s notice as to ownership, which in itself justified proceeding with more than *348usual caution. The judge did not assume that the pie filling and jam were attached, but left that to be determined by the jury. Nor did he instruct the jury that the deputy sheriff had a right to send Dooley there to assist in maintaining his possession. What he did say was that he could maintain Dooley’s presence on the premises when he was acting for him in making a schedule. The instruction was right that the deputy sheriff had a right to schedule the goods before removing them, although after the goods attached are ascertained he cannot keep them on the premises. Steuer v. Maguire, 182 Mass. 575, 577. Williams v. Powell, 101 Mass. 467. Davis v. Stone, 120 Mass. 228. The attempt of Middleby to embarrass the officer by telling him to act at his peril and at the same time to hold him to speedy action is plain. The attempt is not to be looked upon with favor. This covers the refusal to give the third ruling asked for.

6. The rights of Joseph Middleby on the one side and of the deputy sheriff and his assistants on the other do not depend on the deputy’s right to ask for instructions from Hallett. That matter is immaterial, and the first ruling requested, if given, might have been misleading.

7. Middleby’s contention that if he wrongfully commits assault and battery on a man under bad advice, the assault and battery are not wrongful and he is not guilty of a criminal assault and battery, is not law. Such a man is guilty unless he in fact had a justification. Commonwealth v. Randall, 4 Gray, 36. Commonwealth v. Rigney, 4 Allen, 316. What was said in Commonwealth v. Ruggles, 6 Allen, 588, 590, relied on by the defendants was with reference to the question whether a man who lawfully was resisting being put off a highway on which he had a right to be could be arrested for assault and battery.

8. Finally, the exception on the question put to Joseph Middleby on cross-examination must be overruled. Of course this defendant could not be convicted for silent approval of the assault and battery committed by others. But on the question of the credit to be given to his testimony it was competent for the presiding judge in his discretion to allow the government to show bis attitude toward the assault and battery which was committed.

Exceptions overruled.