257 Mass. 254 | Mass. | 1926
This indictment was in four counts: two charging the defendant, in connection with Mary Riseman, his wife, and Leo Silver and Sophie Silver, with a conspiracy to burn on January 21, 1923, certain goods, wares and merchandise, shown to have been in the place of business of the Revere Public Market, Inc., which were insured in certain insurance companies, and, on the same date, to burn a building which was insured, with intent to injure the insurers; and two counts charging him and the other defendants with the actual burning of the above described property with intent to injure the insurers who are named in all four counts. The indictment was nol pressed as to Sophie Silver.
The jury returned a verdict of guilty as to Mary Riseman and Leo Silver - on the first count (conspiracy to burn the personal property), and on the third count (conspiracy to burn the building); and a verdict of guilty on all the counts against Max Riseman, whose exceptions to rulings present the only exceptions before us.
G. L. c. 266, § 10, provides that “Whoever, with intent to injure the insurer, burns a building or any goods, wares, merchandise or other chattels belonging to himself or another, and which are at the time insured against loss or damage by fire, shall be punished by imprisonment in the State prison for not more than twenty years.” An agreement to commit an act in itself criminal, or to be accomplished by criminal means is an indictable offence at common law. Commonwealth v. Waterman, 122 Mass. 43, 57. Commonwealth v.
The first and third counts of the indictment charge that the defendant conspired to set the fire; the second and fourth counts charge the setting of the fire. While the counts for conspiracy were for misdemeanors and could be joined with the statutory counts, the offences were distinct and separate although embraced in one indictment. Commonwealth v. Dyer, 243 Mass. 472, 509. The situation at the trial was the same as if there had been separate indictments for the crimes which, for convenience, 'were being tried together. The jury, however, could find that the property was over-insured; that the defendant bought the real property and, after making improvements, conveyed it to his wife, as a gift, who subsequently conveyed it to a corporation which she organized and in which she owned substantially all the stock except a few shares standing, in the name of the defendants Leo Silver and Sophie Silver; that policies of insurance, originally in her name, were conveyed to the corporation to which they were made payable; that the defendant and his wife lived in a house from which access was had to the basement of the store and which, because the bulkhead had been frozen, was the only entrance to the basement without forcing the bulkhead. There also was evidence that the defendant, the morning after the fire, which was discovered about midnight, admitted that he and the defendant Leo Silver, one of the stockholders and treasurer of the corporation, closed the store about an hour and a half before the discovery of the fire. Although the evidence was circumstantial, the jury could find that the fire was set to obtain the insurance and that the defendant Max Riseman and the defendant Leo Silver acted in combination to accomplish this result. The motion for a directed verdict, therefore, could not have been granted, and the refusal of the trial judge to rule at this stage of the trial
It also follows that the motion for a directed verdict, made at the close of all the evidence, could not have been granted.
The remaining exceptions, in so far as argued, relate to questions of evidence.
The defendant, after showing the mode of appraisement and valuation of the property by a witness who, although not an expert, made on behalf of the defendant an inventory or list of it and its market value, offered the list. It was excluded. This evidence, however, as well as his estimate of the loss, was already before the jury. We perceive no error in the exclusion of the inventory and appraisement of loss which was prepared by the witness to aid the defendant in making an adjustment with the insurance company. After the witness had given his estimate of the market value of the building and the merchandise and fixtures at the date of the fire, the assistant district attorney in cross-examinatian “read from a piece of paper classified as an Inventory of the Stock of the Revere Public Market, Inc.” But this did not make the inventory itself admissible nor enable the defendant to demand and offer as his own exhibit, the paper thus used. Boyle v. Boston Elevated Railway, 208 Mass. 41. Flaherty v. Boston & Northern Street Railway, 210 Mass. 321. The schedules in bankruptcy of the Revere Public Market, Inc., signed and verified by the treasurer, and evidence elicited in cross-examination of the defendant Leo Silver by the Commonwealth, to which exception was taken by Rise-man, as to the financial condition of the corporation before and after the fire, were admissible on the question of the value of the property as compared with the amount of insurance. The denial of his motion for a new trial on this ground shows no error of law. Commonwealth v. Cali, supra. The result is that the entry must be
Exceptions overruled.