257 Mass. 459 | Mass. | 1926
The only question presented by this bill of exceptions is the propriety of the refusal to direct a verdict of not guilty. The charge in each of the two counts is larceny of money in the amount and of the value of $350 of the property of one Gallagher. It could be made out by proof of embezzlement, of obtaining the money by false pretences, or of larceny at common law by a trick or fraud such that no possession of the money had come to the defendant. G. L. c. 266, § 30. Commonwealth v. King, 202 Mass. 379. No request for specifications was made.
The Commonwealth introduced evidence which would justify findings as follows: On September 30,1925, in accord with an arrangement previously made between the complainant Gallagher and an employee of Arthurson and Company, the defendant called upon the complainant in Boston at the Noyes-Buick Company, where the latter was employed as a salesman of used cars. He told complainant “that his name was ‘Papp’; that he was employed by Arthurson and Company, a firm of stockbrokers, who had a large office in New York; that connected with this office of Arthurson and Company in New York was a man who had
Thereafter the complainant visited the office at 20 Kilby Street several times and talked with defendant. Prices of the stock purchased were going higher daily on the New York exchange, and about the middle of October the complainant saw the defendant at the Kilby Street office, was congratulated by him on his profit and was told by him that he had another good tip, to buy Studebaker Motor Car Company stock, and that complainant ought to buy fifty shares. The defendant said he would buy the fifty shares for complainant’s account if he would pay $350 more as additional margin. Complainant agreed and the next day received from New York a confirmation of a purchase of sixty shares of Studebaker stock at $63. This confirmation differed from the earlier one only in the description of the purchase in omitting “Arthurson & Co. 20 Kilby St. Boston, Mass.”; in being signed “Arthurson & Co. Per L. J. Byrne”; and in the date, October 17, 1925. The complainant gave the defendant a check dated October 21, 1925, for $350, payable to the order of “Arthurson & Co.” He went to the Kilby Street office and told defendant that he had bought fifty, not sixty shares. The defendant said the sixty was a mistake which he would correct.
From time to time the complainant visited the defendant at the Kilby Street office, and was congratulated on his profits. Both Hudson and Studebaker stocks were going up in price. About November 5, 1925, the defendant said complainant had made so much and his account was so strong that he could buy fifty more shares of Studebaker without paying additional margin. The complainant said: “All right, buy fifty more shares of Studebaker for me”; and, in a day or two, he received a confirmation from New York for a purchase of fifty shares of Studebaker at $65.35.
About November 10, prices for the stock began to fall. Complainant, fearing loss of his profits, went to the office in Boston and told the defendant that he wanted all his stocks sold. The defendant told him not to be frightened, the market reaction was temporary and his stocks would soon regain their high prices. Complainant said he wanted to sell and that the defendant should sell. Hearing nothing, he went again to the office and demanded that defendant sell the stocks and send a check for the balance. Defendant finally said he would sell the stocks and send the check to balance the account. Complainant never received a check from the defendant; but shortly before Thanksgiving he received from “Arthurson & Co.” confirmations: one dated November 17, 1925, for a sale of twenty-five shares Hudson Motor Car Co. at $99], and one dated November 18, 1925, for a sale of one hundred and ten shares Studebaker Corporation at $54f. These confirmations were similar in form to the others save the signature which was “Arthur-son & Co. Per .”
Several months later, ip the corridor of the Court House at Boston, complainant met the defendant and asked about the $700 which he had put in. The defendant told him to keep quiet, and that he would see to it that complainant got his money. No money was received by him. Complainant made complaint to the police shortly after Thanksgiving in 1925. The interview at the Court House was at a time when the complainant was threatening the defendant with arrest unless his $700 was returned.
There was evidence that about the middle of November, 1925, two witnesses visited New York, went to 25 Beaver Street, and there found, in a rear corridor of the building, a door bearing the name Arthurson and Company. Some time after 9:30 a.m. this door was opened by a young man. The witnesses followed him through it into a small outer office about eight feet by eight feet in size, and they looked into an inner office which was not a large room.
The check given by the complainant on September 30 bore indorsements indicating that it had been deposited with the State Street Trust Company in Boston and had been paid on October 5, by the Broadway National Bank, on which it was drawn. The check dated October 21 bore indorsements indicating that it had been deposited with The National Shawmut Bank of Boston on October 22, had passed to the Federal Reserve Bank of Boston, and had been paid on October 23 by the Broadway National Bank. There was no indication that they had been sent to New York unless the indorsement “Arthurson & Co.” so implied.
No exception seems to have been taken to any of this evidence. At the close of the evidence for the prosecution, the defendant rested and moved that the jury be directed to return a verdict of not guilty. The motion was denied. No exception was claimed to the judge’s charge. The evidence recited furnishes a basis for inferences that the defendant, who in obtaining his. registration had described himself as “Arthurson & Co.” was, in fact, the only Arthur-son & Co.; that the money received by him had never been sent to New York but had been kept by him; that only a colorable office was maintained in New York; that the business was merely “bucketing”; that no purchases or sales of any stock had been made; and that from start to finish the defendant had been engaged in a scheme to defraud the complainant. If this were found to be the truth, the defendant could be found guilty of larceny at common law in the first transaction as well as in the second; for the original order to purchase the Hudson stock had been given to an employee of “Arthurson & Co.”, that is, on this hypothesis, of the defendant. The proof is largely matter
We must assume that correct and full instructions were given describing the material facts which must be established to make out larceny in some one or more of its forms; and insisting upon the necessity that the jurors be satisfied beyond a reasonable doubt of the truth of those material facts before they could render a verdict of guilty.
There was no error in refusing to direct a verdict of not guilty.
Exceptions overruled.