These are appeals under G. L. c. 278, §§ 33A-33G, as amended, following convictions for larceny, for taking gratuities as a bank officer in connection with bank business, and for a conspiracy to steal.
A general preliminary statement may be summarized from the evidence as follows: Ries for many years was a vice-president and a lending officer of a Massachusetts trust company located in Boston where he became acquainted with one Maitland in December, 1948. . Soon thereafter Ries began to lend money of the trust company to Maitland upon unsecured loans. Early in January, 1954, Maitland had repaid all his loans from the trust company. In the spring of 1952, Ries interested one Kalman (or one of the seven corporations which he controlled, hereinafter referred to as Kalman) in lending money to Maitland who thereafter borrowed $1,166,950 on short term ninety day notes at the rate of $50 per $1,000, all of which purported to be secured by city purchasing slips, 1 every one of which was fictitious and worthless. When the Kalman transactions came to an end in the middle of February, 1954, Kalman was owed $243,800 which has never been repaid.
The defendant was tried on fourteen separate indictments
The defendant has set forth numerous assignments of error which he briefed and argued. We shall follow that order.
1. The third, fourth and fifth assignments of error are to the refusal to grant certain pre-trial motions. The first group of these motions sought a change of venue. Kalman committed suicide on the morning of the day originally set for trial. The newspapers, as shown by the clippings introduced at the hearing, gave considerable publicity to the event both as to the space allotted to it and as to the contents of the articles, especially the relation of Kalman to the impending trial, and prophesied what result his death would have. Some of the articles carried large headlines and were embellished with pictures of Kalman, his secretary, and his attorney. Some of the articles contained a reference to a settlement made between Kalman and the trust company on account of the loss incurred arising from the bogus city purchasing slips.
Another motion requested that the indictment charging conspiracy to steal should be tried separately from the other indictments or in the alternative that Ries be tried separately from Maitland and Wren, also named as codefendants in that indictment.
Wren did not agree to waive a jury trial on the indictment charging conspiracy with Ries and Maitland. Maitland, who appears not to be represented by counsel, took no part at the hearing upon this motion but the district attorney opposed its allowance. After a hearing, the judge denied the motion. The statute provides that a defendant in a non-capital case may waive a jury trial “but not, however, unless all the defendants, if there are two or more charged with offenses growing out of the same single chain of circumstances or events whether prosecuted under the same or different indictments or complaints shall have exercised such election before a jury has been impanelled to try any
The waiver of a jury trial was the only matter embraced in this motion that is regulated by statute. G. L. c. 263, § 6, as amended. All the matters embraced in the decision rested in the sound judicial discretion of the judge. There was no error.
Commonwealth
v.
Slavski,
The third group of motions sought a joint trial of Maitland with the defendant on the conspiracy indictment which we have already discussed and also upon the larceny indictments in which each was separately charged with offences based upon the same transactions. Whether there should be joint or separate trials rested in the sound discretion of the judge. We see no question of law involved in the denial of these motions.
Commonwealth
v.
DiStasio,
2. There was no error in the refusal to direct verdicts for the defendant on the larceny indictments upon the ground of insufficient evidence as set forth in assignment 18 nor upon the ground of variance as set forth in assignment 23.
A jury could find the facts herein recited under this heading. After Maitland had been borrowing from the trust company for more than three years by unsecured loans, he told Ries in March, 1952, that he wanted larger loans and asked him if he knew anyone who would be interested. He told Ries he wanted $100,000. Ries asked what he had for security and Maitland said that he had the city of Boston contract forms. Maitland also said, “They look good and they have never been questioned anywhere and I don’t see any reason why it couldn’t be used here as long as they are not checked up.” A few days later Ries met Kalman at the trust company and then introduced him to Maitland.
The procedure was for Maitland to tell Ries how much money he wanted. Ries would telephone Kalman for the amount. Maitland would bring in a filled in city slip running to G. J. Maitland Co. Maitland would sign the assignment and the note that Ries made out. The assignment was made out by Ries upon a trust company blank by inserting the name of the lender as assignee. Ries also made out the note which Maitland signed payable to Kalman or whichever corporation was the lender. The collateral and assignment would be turned over to Kalman for his check or that of his lending corporation. Maitland’s note would be turned over to the collection department of the bank for collection. On several occasions Maitland received treasurer’s checks of the trust company, made out by Ries in his official capacity, instead of the lender’s checks. The de
On October 14, 1953, Kalman, Miss Sullivan, one Sieve and Ries met at a restaurant in Boston. Miss Sullivan was Kalman’s secretary and Sieve had been his accountant for many years. Sieve said he was not satisfied with the manner in which the Kalman loans were being handled and that the order slips should be verified at the city hall. Kalman and Ries said that that could not be done as it would cause a lot of trouble. Sieve said it was only an ordinary procedure to check up on the receivables mentioned in the order slips to see if they were genuine. Sieve told Ries he could not understand why the city would object to a checkup of the security, but Ries insisted that “it would cause a lot of trouble if we did.” As limited to bearing upon Sieve’s mental attitude, he was allowed to state that he did not invite Maitland to the conference as Kalman told him that he depended mainly on Ries for advice. Ries stated to Sieve that these contracts of the city were genuine. Miss Sullivan heard Ries say that the city orders were valid papers. Upon the suggestion of Sieve that Maitland secure a life insurance policy on his life for $100,000, Ries had Maitland secure a policy for $50,000 which was assigned to Kalman.
During this conversation Ries told Sieve that the trust company thought very highly of Maitland and that he was a good risk. But from the time Maitland began to borrow from the trust company in December, 1948, until this conference, Maitland brought in financial statements to support his request for unsecured bank loans. All of these statements were accepted by Ries although he instructed Maitland in each case to show more assets. In fact, Ries added an explanation to the first statement submitted by Maitland. On one occasion Ries told Maitland in reference to his financial statement, “Bring it up and make sure that there is sufficient money showing in the left hand column to warrant the loan.” It could have been found that Maitland
After the conference of October 14, 1953, Ries told Maitland that Kalman’s accountant was suspicious about the collateral and could not understand why it had not been checked. The accountant desired to have the order slips contain copies of the invoices included in the orders and Ries advised Maitland to do so in order to keep the accountant quiet. Ries finally said that nobody would do any checking so long as he could talk to Kalman, and that Kalman “would rely on his word.” No checking was ever done until after the loans from Kalman had ceased in February, 1954.
The main contention of the defendant is that he did not know that the order slips of the city were false and worthless while he was dealing with Maitland. It is indisputable that these slips represented fictitious transactions and that none of them was genuine. There is no dispute that Maitland knew they were false, had the blanks filled in, and used them as collateral security to borrow money from Kalman. If the order slips were genuine, any surplus that exceeded Kalman’s equity belonged to Maitland and any deficit would have to be made good by Maitland.
All the larcenies charged against the defendant occurred subsequent to the conference of October 14, 1953. There was evidence that Ries stated several times at this meeting that the city slips were genuine. Indeed a jury could easily find that one of the matters insisted upon by Ries in handling the Maitland and Kalman transactions was that the falsity and utter worthlessness of the city slips should not be disclosed.
Kalman was dead at the time of the trial but there was sufficient evidence that he relied upon the false representations of Maitland and Ries in lending money to Maitland. Ries admitted as a witness that he considered himself as a financial advisor to Kalman. He assured Maitland that there would be no checkup of the bogus collateral as long as he could talk to Kalman. As between Sieve’s reasonable request for a checkup of the collateral and the opposing view of Ries, Kalman, who at that time was owed more than $200,000 by Maitland, took the advice of Ries and relied upon the latter. There was sufficient evidence that Kalman relied upon Ries in making the loans to Maitland.
Commonwealth
v.
Orler,
The evidence was sufficient to show that Ries knew that the city slips were false and worthless; that he had joined Maitland in obtaining money from Kalman under false pretences; and that he had aided and abetted Maitland and at times had himself made false pretences. Both phases of his activities were presented to the jury. There was no error in refusing to direct verdicts for Ries on the indictments charging him with larceny.
Commonwealth
v.
Coe,
Similarly there was no error in refusing to direct verdicts on the larceny indictments on the ground of variance, as set out in assignment 23. Evidence of all the elements of obtaining money by false pretences was introduced by the Commonwealth and was in substantial accordance with the material specifications. Bies fails to show that he was prejudiced. G. L. (Ter. Ed.) c. 277, § 35.
Commonwealth
v.
Meserve,
3. Assignments of error as to the indictments charging the defendant with the receipt of gratuities in connection with business of the trust company are set forth in various forms. The general questions presented by all these assignments are raised by assignments 37 and 39 challenging statements made by the judge in his charge that as a matter of law the part that the trust company took in the making of the Kalman loans “did constitute business of the . . . trust company,” and that the jury need not “worry about whether these activities were business of the trust company or not.”
It is not disputed that the defendant was a vice-president and lending officer of the trust company, presumably employed on a full time basis. An officer, director, employee, or attorney of a trust company is prohibited by G. L. c. 172, § 16, as amended by St. 1934, c. 349, §11, from receiving “any fee, commission, gift or other consideration for or in connection with any business of such corporation” with stated exemptions, none of which specifically covers the present cases. The statute was applied in
Commonwealth
v.
McKnight,
The contention of the defendant, with respect to assignments 37 and 39 and the judge’s charge, is that it “cannot be ruled, as a matter of law, that the trust company activities specified and proved in this case were definitely business of the trust company within the contemplation of the statute.” In effect the defendant agreed to the facts in so far as they relate to the extent that the trust company itself directly participated in the Kalman transactions (see
Commonwealth
v.
Gardner,
It does not seem to be disputed in the present record that there had been a considerable course of dealings, going back to 1946, between Kalman, and Ries as an officer of the trust company. Kalman was “a substantial customer of the . . . trust company” and one “concerning whom the employees ... of the . . . trust company should be solicitous,” for a substantial account was maintained in the trust company by Kalman and “a substantial amount accrued to the . . . trust company for . . . services rendered to him and for interest that he paid.” In fact, Kalman borrowed some funds from the trust company to assist him in making some loans to Maitland. If the jury should conclude that payments were made to Ries by Maitland in connection
In addition the undisputed facts of extensive use of the trust company’s premises and facilities, taken in connection with the facts summarized in the preceding paragraph, confirm that the transactions were closely in connection with business of the trust company. The trust company collected $977,000 of Maitland’s notes. In all, about one hundred seventy-five transactions were concerned. Notice had to be sent to Maitland of the due dates of the notes, and the payments by him and the delivery of the paid notes followed. All of the notes together with the assignments of the accounts were made upon the premises of the trust company at the desk of Ries upon forms used by the trust company after he drafted them to fit the loan Kalman was making. The collection department in collecting the notes was performing, of course, one of the usual functions of a trust company.
In the opinion of the court, all the facts summarized above taken together amply justified the trial judge in the present case in instructing the jury that the sole question before them upon the indictments under § 16 was whether Ries had received gratuities from Maitland. Under the undisputed circumstances revealed upon this record, they related to transactions with which business of the trust company was inextricably interwoven at every stage.
General Laws c. 172, § 16, is a penal statute and must be strictly construed. It does not definitely enumerate what
What has been said essentially disposes of the other assignments of error relating to the indictments under § 16. Assignment 19 is based on the alleged failure of the Commonwealth to prove that Hies received any gratuities in connection with the business of the trust company. Assignment 32 is to the failure of the judge to give an instruction that there could not be a conviction for receiving gratuities unless they were received in connection with the business of the trust company and not merely for the arranging by Ries of a loan by Kalman to Maitland. There is no merit to these assignments. The transactions sufficiently constituted or involved business of the trust company, so that if gratuities were found to have been paid, there was a violation of § 16. Also, since the facts in reference to the receipt of gratuities were in dispute, the defendant had no right to select some of the facts upon an issue, group them into a request, and have it given.
Commonwealth
v.
Broadbeck,
What has been said also disposes of (1) assignment 36, based upon the refusal to grant the fifth request for a ruling that certain facts there enumerated would not warrant finding the defendant guilty of accepting gratuities unless the jury further found that those gratuities were given not merely for arranging the Kalman loans but also for and in connection with the business of the trust company, and (2) assignment 38 based upon the remark by the judge in his charge that “all the loans were handled by Mr. Kies himself as vice-president of the bank.” If this remark was error it affords no basis for complaint under our interpretation of § 16.
4. Assignments relative to the conspiracy indictment.
Assignments 21 and 22 are based upon the refusal of the trial judge to direct a verdict for the defendant because of
The aforementioned assignments of error and assignments numbered 26 to 29 (relating to requests for instructions) are predicated on the theory that the bill of particulars sets out a definite description of a specific scheme to defraud and that the prosecution must prove beyond a reasonable doubt every allegation in the specifications describing the plan. See
Commonwealth
v.
Hartwell,
A bill of particulars cannot enlarge the scope of an indictment to include an offence not charged therein.
Commonwealth
v.
Kelley,
The important question in the instant situation is whether a detailed plan of conspiracy to defraud when specified in an indictment or a bill of particulars thereunder must be proved in every detail, see
Commonwealth
v.
Hartwell,
Assignment 30 is based on the denial of a request for instruction that it was immaterial that Maitland and G. J. Maitland Co. were not separate legal entities if Ries accepted in good faith, as a financial practice not indicative of a fraudulent intent, the treatment by Maitland of Maitland’s personal account as separate from his business or “company” account. Even if Ries differentiated between the personal account and the business account of Maitland, that fact, if it was a fact, could be referred to in the charge if deemed by the judge to be of sufficient importance to a proper determination of the case. A judge ordinarily decides to what extent he will state evidence in his charge. He is not required to grant a request based upon a fragment of the evidence submitted upon a single portion of a more or less remote branch of a main issue such as the fraud of Ries. It was said in
Commonwealth
v.
Miller,
5. Assignments 1 and 2 are based upon the refusal of the trial judge to grant the defendant’s pre-trial motions for an inspection of the transcript of the testimony given by Bies when he was a voluntary witness before the grand jury. Assignment 13 relates to the judge’s allowing the reading of the aforementioned transcript at the trial after the denial of the request for an inspection of the transcript before the trial. That transcript contained at least one admission that Bies handled the Kalman transactions during the final six or eight months. There was no error.
Under our decisions the defendant had no right before his trial to examine the transcript of testimony of the grand jury proceedings.
Commonwealth
v.
Jordan,
6. Miscellaneous rulings on evidence.
Assignment 6 relates to the refusal to allow one Morse, a vice-president of the trust company, to answer on cross-examination a question as to what percentage of loans by the trust company secured by pledges of accounts receivable called for notice to the debtor on such accounts. The answer was sought to show that nonnotification financing was customary and that it would not necessarily raise suspicion if one should request that the debtor not be informed of the assignment of the accounts. But Ries, while he was a witness in his own behalf, testified that nonnotification financing was customary at the bank and that the want of notice to the city did not create suspicion as to the validity of the collateral. If there was error in excluding the answer the defendant was not harmed by the exclusion of the evidence.
Assignments 9 to 12 are on the ground that much evidence unnecessary and cumulative was introduced. The Commonwealth had the right to show the entire conduct of the defendant although the evidence became cumulative in places.
Commonwealth
v.
Scott,
Assignment 17 is to the exclusion of further testimony on the redirect examination of the witness Greb. During the cross-examination the Commonwealth fixed the time of a certain conversation that the witness Greb had. It did not introduce any part of the conversation.
Commonwealth
v.
Taylor,
The other assignments based upon rulings on evidence which have not been waived have been examined and we find no need of reciting them. There was no error.
7. Maitland during cross-examination refused to answer a question, as to whether or not he included in his Federal tax returns the commissions he paid Hies on the Kalman loans, on the ground that the answer might tend to incriminate him. It is not questioned that he had the right to exercise his privilege, but the defendant contends that the judge was wrong in not permitting him in his closing argument to the jury to comment upon the exercise of the privilege by Maitland. The latter was a witness and not a defendant. He was claiming a privilege the exercise of which rested entirely with him. It was a personal matter independent of the prosecutor or counsel for the defendant. Neither should be favored or harmed by the choice of the witness. See
Andrews
v.
Frye,
In this Commonwealth it is settled that if in the course of the trial the evidence tends strongly toward the defendant’s guilt and there are persons available who by relationship or association with the defendant have knowledge of the material facts connected with the transaction for which the defendant is being tried and he would naturally be expected to call them as witnesses to aid him, his failure to call them and their absence not being sufficiently explained, then such failure may furnish foundation for the drawing of an adverse inference. It was said in
Commonwealth
v.
Finnerty,
Judgments affirmed.
Notes
These purchase slips were city of Boston service order forms supposedly made out by a specific department of the city to G. J. Maitland Co. Each slip listed the type, quantity, and price of the article included, and the appropriation code by a key number. The slips also specified that the amount payable would be due in ninety days. At the bottom of the form appeared an “Inspection and Completion Certificate” with the signed name of the purported receiving agent. Another blank at the bottom of the form entitled “Approval of Head of the Department” stated, “I hereby confirm the inspection and completion certificate and approve a payment in the amount of $ ... for the service furnished.” The total amount due was written in this blank and a rubber stamp was used for the purported signature of the department head.
The defendant was acquitted on one indictment charging him with receiving gratuities as a bank officer and not included in these appeals.