316 Mass. 24 | Mass. | 1944
The defendant and one Mary Russo were indicted, tried together, and convicted on four counts charging them with stealing articles of the value of less than $100.
1. Each count alleged that the theft was committed by “Mary Russo and Jennie Torrealba, otherwise called Jean Parker, otherwise called Jennie Delfino, otherwise called Olive Parker, otherwise called Jean Bartholomew, otherwise called Jennie Andrews, otherwise called Jennie Murphy, otherwise called Olive Gerard, otherwise called Jennie Castalucci, otherwise called Jennie Andreosi.” After the jury were empaneled and before the indictment was read, counsel for the defendant objected to the reading of the aliases. The judge directed the clerk to read the indictment as written, and the clerk did so subject to the defendant’s exception. The defendant was referred to by witnesses both as Jean Parker and as Jennie Torrealba. There was testimony that the defendant, when asked her name by a police officer, replied, “Tagnelion,” and then answered in the affirmative a further question as to whether she was also known as Jean Parker. Other than that, there was no evidence in proof of the aliases. The defendant offered no testimony, and rested at the close of the Commonwealth’s case without asking any further ruling on this point. The defendant contends that this is not a mere matter of fictitious or erroneous names, which is not even ground for abatement (G. L. [Ter. Ed.] c. 277, § 19), but more fundamentally that she was preju
2. The defendant also excepted to the denial of motions for a directed verdict of "Not Guilty” on each count. These exceptions must be overruled. The first, second, third, and fourth counts respectively charged the theft on June 5, 1943, of two skirts and five blouses, the property of Gorin’s Incorporated; five shirts and one table cloth, the property of W. T. Grant Company; two shirts, the property of Enterprise Stores Incorporated; and one lounging robe, the property of Everett Department Stores. The testimony for the Commonwealth tended to show the following: On June 5, 1943, about 2:45 p.m., Mary Busso and the defendant were
The defendant contends that there is no evidence from which could be found an intent on her part to steal or carry away the merchandise. We are of opinion that the jury would have been warranted in finding that there was a joint enterprise of shoplifting entered upon by the defendant and Mary Russo. The jury could have found that the articles had not been sold, were all recently stolen, and were jointly in the possession of the two women. "It was not essential that the property stolen should have been in the sole possession of the defendant.” Commonwealth v. O’Hare, 254 Mass. 564, 565. 1 Bishop, Criminal Law (9th ed.) § 656 (2). The jury could also have found that no satisfactory explanation of such possession was given by the defendant. This might convince them of her guilt. Commonwealth v. Taylor, 210 Mass. 443, 444. Commonwealth v. Grace, 265 Mass. 119, 124.
There is much more here than the mere presence of the defendant at or near the scene of the crime. Brown v. Perkins, 1 Allen, 89, is not in point. In the case at bar it cannot be justly said that the question of guilt is left to conjecture or surmise and has no solid foundation in established facts. See Commonwealth v. O’Brien, 305 Mass. 393, 401. The jury could have found the defendant to have been an active participant in the entire enterprise. The statement of Mary Russo that she had stolen all the “stuff” — assuming in the defendant’s favor that it was not admissible against her — did not preclude the jury from finding that the defendant also stole it in cooperation with her. The crime of stealing property not exceeding $100 in value (see G. L. [(Ter. Ed.] c. 266, § 30) is a misdemeanor. G. L. (Ter. Ed.) c. 274, § 1. McDermott v. W. T. Grant Co. 313 Mass. 736, 737. Collins v. Commonwealth, 315 Mass. 167, 168. "In misdemeanors there are no degrees, but all who participate in them are principals and may be charged as such and convicted upon proof of having taken any part therein.” Commonwealth v. Jaffas, 284 Mass. 417, 419,
3. Certain exceptions to the admission of evidence remain to be considered. The manager of the Enterprise store was permitted to testify that it was the custom in his store to give a sales slip with each purchase. In this there was no error. Mumford v. Coghlin, 249 Mass. 184, 190. Santarpio v. New York Life Ins. Co. 301 Mass. 207, 209. Meehan v. North Adams Savings Bank, 302 Mass. 357, 363. Anderson v. Billerica, 309 Mass. 516, 518. Wigmore, Evidence (3d ed.) § 92.
The manager of each of the four stores testified that he had examined the record of the cash register on the afternoon in question, and that this did not show the sale of any article alleged in the indictment to have been the property of his store. This was a proper method of proving the absence of any record of sale. Commonwealth v. Best, 180 Mass. 492, 495. Blair’s Foodland Inc. v. Shuman’s Foodland, Inc. 311 Mass. 172, 176. Wigmore, Evidence (3d ed.) § 1244. In these circumstances the proof of the fact that an entry does not exist does not require the production of the records themselves or the laying of a foundation for the introduction of secondary evidence.
Exceptions overruled.