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BRALEY, J. This is an appeal under G. L. c. 59, § 65, from the refusal of the assessors of the city to abate a tax on 2,878 bales of cotton alleged to have been taxable to the complainants on April 1, 1920. The trial judge having found and ordered judgment for the respondent, the case is before us on the complainants' exceptions to the refusal to give the first, second, fifth, ninth and tenth requests, and to all the findings and rulings inconsistent therewith. St. 1909, c. 490, pt. 1, § 23, as amended by St. 1918, C. 129, under which the assessment was levied,

reads as follows:

"All personal estate, within or without the commonwealth, shall be assessed to the owner in the city or town in which he is an inhabitant on the first day of April, except as provided in part III and in the following clause of this section: First. All tangible personal property, except ships and vessels, shall be taxed to the owner in the city or town where it is situated on the first day of April."

The question for decision is whether the complainants, on April 1, 1920, were the owners of the cotton within the meaning of the statute. It was stored in public warehouses in the city, for which negotiable warehouse receipts were issued in the name of the complainants, who were nonresident cotton brokers. It may be said at the outset that the receipts were documents of title under G. L. c. 105, §§ 46, 54, and that, as between the complainants and the purchasers, title could be passed at such time or times as the parties mutually intended. G. L. c. 106, § 20 (1). The general course of business as described in the record shows, that upon receiving an order for raw cotton from a local mill, they bought from a Southern dealer at a less price the exact quantity ordered. The dealer then shipped the cotton consigned to them, and at the same time forwarded to "a bank in or near the city" the bill of lading to which was attached a sight draft drawn on the complainants for the price. But before arrival they delivered to the mill a sale note,

stating in substance, that "we have sold you on your order * the bales of cotton" ordered, which is "to be stored in New Bedford but not to be carried more than six * months from date of invoice."

"The cotton to be stored and insured by you for us until paid for, but the title not to pass from us until paid for; nor until the surrender of your receipt issued to us against the same."

ing in of the bill of lading, the complainants The exceptions recite that, upon the commade arrangements with the bank to have the cotton stored in a warehouse designated by the mill, and the receipt which issued ran to them, or to their order, and thereupon they pledged it to secure their note for an amount equal to the draft, to the payment of which the proceeds of the note were to be applied. The storage and insurance charges

were paid by the mill pending the time when it should pay the complainants the purchase price, who then could use the money in payment of their note to the bank, and receive the pledged receipt, which upon transference to the mill enabled it to obtain delivery. Of the 2,878 bales, 2,572 bales were to be thus transferred. The only difference as to the payment for the remaining 306 bales was, that instead of borrowing on the receipts, they used their own funds in settlement of the draft. It appears, and the judge so found, that the cotton intended for each mill was separate, and could be identified, and that the taking of the receipts furnished the complainants with security for payment of the price. But throughout all the transactions in whatever light they may be viewed, the provisions of the sale note, that "title not to pass from us until paid for, nor until the surrender of your receipt issued to us against the same," has never been abrogated nor modified. The mill could not obtain possession, nor acquire ownership until payment, and the title consequently remained in the complainants, who under the mode of dealing either held or controlled the receipts for all the cotton on April 1, 1920, payment for which by the mill was yet to be made. The assessment to them as owners was justified by the statute. Raymond v. Worcester, 172 Mass. 205, 51 N. E. 1077. See Donovan v. Haverhill, 247 Mass. 69, 72, 141 N. E. 564, 30 A. L. R. 358. We find no error of law in the denial of the requests, or in the rulings, to which the petitioners excepted. Exceptions overruled.

(146 N.E.)

COMMONWEALTH v. BALDI et al. (two cases). SAME v. BALDI. SAME v. MARTINO.

(Supreme Judicial Court of Massachusetts. Middlesex. Jan. 9, 1925.)

1. Robbery 24 (1)-Evidence held to sup. port verdict of guilty of robbery, being armed. Evidence that defendant was principal in scheme to rob, and was present when it was executed, held to support verdict of guilty of robbery, being armed.

2. Robbery 24 (1)—Evidence held to support verdict of guilt as accessory before the fact of robbery.

Evidence which connected defendant with

principal in scheme to rob held sufficient to sup port conviction as accessory before the fact of robbery.

3. Criminal law 622 (2)-Motion to require commonwealth to elect indictment under which it would proceed rightly overruled.

Where defendants were indicted jointly or severally for robbery, being armed, for being accessory before the fact of robbery, for conspiracy to rob, and for receiving stolen goods, there was no error in overruling motion to require commonwealth to elect under which indictment it would proceed, where there was but a single course of criminal conduct, and same evidence in substance would be required to prove such crime.

case

7. Criminal law 1023 (9)-Criminal
may be reported, after verdict of guilty, be-
fore sentence; "conviction."

Under G. L. c. 278, § 30, judge of superior court can report case, after verdict of guilty, and before sentence is imposed; "conviction," as used therein, including judgment following verdict of guilty or confession of guilt, or it may mean verdict of guilty against defendant, or his confession in open court, without judgment or sentence.

and Phrases, First and Second Series, Convict[Ed. Note. For other definitions, see Words

ed-Conviction.]

Exceptions from Superior Criminal Court, Middlesex County; F. W. Fosdick, Judge.

found guilty of various offenses, recited beHugo Baldi and Bernardo Martino were low, and they except after sentence. Exceptions overruled. Verdicts affirmed.

R. T. Bushnell, Asst. Dist. Atty., of Boston, for the Commonwealth.

W. S. Kinney, of Boston, for defendants.

The de

CARROLL, J. The defendant Baldi was found guilty and sentenced on an indictment (numbered 9921) charging him with robbery of Dennis Meehan, being armed. fendant Martino was found guilty and sentenced on an indictment (numbered 9920) charging him as an accessory before the fact 4. Criminal law 383-Question to prosecut. to the robbery of Meehan. These two cases ing witness in robbery, as to whether he saw are before us on the defendants' bill of excepanything indicating that defendant knew mentions. On two other indictments (numbered that robbed him, rightly excluded. 9919 and 9926) the defendants were found

Where prosecuting witness, after being guilty. These indictments were then placed taken to certain place by defendant in automo- on file by order of the judge. Indictment bile, was ordered to go to door of icehouse al-numbered 9919, charging the defendants with most immediately on arrival, and defendant disappeared, and prosecutor was bound by others and placed where he could see little of what was going on, and had no opportunity to know whether defendant knew the other men, excluding evidence on cross-examination, as to whether he saw anything indicating that defendant knew any of the five men who robbed him, was without error.

5. Criminal law 413(1)—Self-serving declaration of defendant, in conversation day following robbery, rightly excluded.

There was no error in excluding conversations of defendants on day following robbery, they being self-serving declarations, and not within exceptions to rule excluding them, and not being offered to contradict.

6. Criminal law 361 (3)-Evidence negativing effect of defendant's evidence of imprisonment as excuse for not procuring witness rightly received.

Where defendant, in prosecution for robbery, claimed that his imprisonment shortly thereafter was excuse for not procuring defense witness, commonwealth could negative effect of his evidence of imprisonment by showing that he was free to have found witness since release, and that he had not been in another jail.

conspiracy to commit the crime of robbery from Meehan, and indictment numbered 9926, against Martino for receiving stolen goods, were reported to this court, the evidence in the bill of exceptions being incorporated in the report. These four indictments were tried together with four other indictments, in two of which Baldi was charged with being an accessory after the fact to the murder of John B. Gourard, and in two of which Martino was charged with the same crime. In these four last-mentioned indictments, verdicts were ordered for the defendants. Eight cases were tried together. Before the jury was impaneled the defendants moved that the commonwealth be required to elect upon which of these indictments it would proceed against the defendants. The motion was overruled. The defendants moved at the close of evidence that a verdict of not guilty be ordered in cases numbered 9919, 9926, 9921 and 9920, which motion was denied, the defendants excepting.

In August, 1923, Baldi arranged with one Wortham to furnish 75 cases of Scotch whisky. Baldi, during the two years previous, had several transactions with Wortham in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

house in Newton on that afternoon; that Martino drove him to a place where Baldi took the car for Watertown, about 30 minutes after 5 o'clock. The evidence showed that the liquor was to be delivered, according to the original arrangement with Wortham, at Clinton to one John Galbo. On August 13, Baldi directed that the liquor be delivered at Marlboro. When Baldi was asked if there was such a person as Galbo he replied, "I don't know," and also admitted that he had made no effort to find Galbo.

It appeared that the icehouse in question was owned by a company of which John B. Gourard was president. He went to the ice

Baldi untied himself. Shots were fired, one of them striking Gourard and as a result of which he died. He did not identify either of the defendants. There was evidence for the jury to justify the verdict of guilty on the four indictments upon which the jury passed.

volving the sale of liquor. On the night of August 13, Wortham met Baldi in Watertown and went with him to Waltham, where Meehan, from whom Wortham purchased the liquor, met them. The original agreement was to deliver the whisky at Clinton, but on August 13 Baldi notified Wortham to deliver it at Marlboro. There was evidence that Meehan met them at Waltham, both Wortham and Baldi accompanied Meehan in a Packard automobile, driven by Meehan, in which machine were 24 cases of Scotch whisky, and that another car was to follow them. Baldi, Wortham, and Meehan started for Marlborough, and on the trip the car in the rear was lost track of. On arriving at Marl-house on the night of. August 13 just before borough, on the main highway where there was a sign, Baldi directed Meehan to turn into a driveway; he drove in this way about 200 yards to an icehouse, and they were met by two men who directed Meehan to drive to the door of the icehouse, Baldi saying he would return to the main highway and look for the other car. When Meehan came to the door, two men armed with drawn revolvers seized Wortham and tied him with ropes; at the same time three other men overpowered Meehan and bound him. Wortham and Meehan were taken to the icehouse and stood against the wall, Meehan being robbed of $2,900 in cash, a couple of card cases, and a pocketknife, the robbers "leaving at his request some keys and also leaving a diamond ring worth $500, which he was wearing." Wortham was robbed of $3, "being left with a little small change." About five minutes after this robbery, Baldi was brought into the icehouse tied, and placed against the wall, and in a few minutes was placed in a corner diagonally opposite to Meehan and Wortham. The sound of an approaching automobile was heard. Baldi freed himself from his bonds and freed Wortham and Meehan. A flash light was seen, whereupon Baldi said: "Tie me up again; if we are not tied when they come in they will kill us all." When Baldi was arrested, $47 in cash, a wallet and razor were found upon him. After his arrest, a gun was found in the sawdust where Baldi had been taken. The next day the 24 cases of Scotch whisky, which were in Meehan's Packard car, were found in Martino's cellar in Newton, covered with automobile robes from Meehan's car, and the Packard car belonging to Meehan was found in Newton, about three-quarters of a mile from Martino's house.

Baldi and Martino were partners in the illegal sale of liquor, although Martino testified that he knew nothing of this particular transaction in question and did not know who put the liquor in his cellar. On cross-examination of Martino, he admitted that he told the police officers that he had not seen Baldi on the afternoon of August 13. There

The place of delivery was selected by Baldi, it was not known by Wortham or Meehan. Baldi on August 13 directed that the liquor should be delivered at Marlboro although it was supposed it was to go to Galbo at Clinton. When Baldi was tied up, he was taken to a corner diagonally opposite to Meehan and Wortham and the jury could find that this was done so that Wortham and Meehan could not see him. He alone of the three men was able to untie himself; he requested Meehan and Wortham to tie him again; a gun was found at the spot where Baldi was supposed to be tied. Meehan and Wortham were robbed of nearly everything of value except the ring, which may have been overlooked, while Baldi's funds, consisting of $47, were not taken from him. The stolen liquor was found in his partner's home and near by the automobile of Meehan's was found. Baldi and his partner were together August 13, and Martino drove Baldi to a place where he could take a car for Watertown. Baldi made no effort to locate Galbo who was supposed to live in Clinton, and was represented to be the purchaser.

[1] Considering all the evidence, the jury could find that Baldi was the principal and prime mover in the scheme by which Wortham and Meehan were to be taken to this place in Marlboro, where Baldi's associates were prepared to meet and rob them of their money and property; that Baldi's being bound and placed in the barn was a mere pretense and a part of the plan to divert suspicion from himself. The existence of the scheme was a question for the jury. Baldi was present when it was put into execution; it could be found he was acting in conjunction with the robbers and affording them aid; that the weapon found was in his possession. There was evidence therefore that he was the prin

(146 N.E.)

conspirators. Commonwealth v. Allen, 175; Commonwealth v. Clune, 162 Mass. 206, 214, 38 N. E. 435. See Commonwealth v. Reed, 162 Mass, 215, 218, 219, 38 N. E. 364.

Lucas, 2 This was excluded and the defendants excepted. Meehan was ordered to go to the door of the icehouse almost immediately on his arrival. Baldi disappeared. Meehan was bound and placed with his face against the wall, so that in the darkness of the night he could see little, if anything, of what was going on. He had little, if any, opportunity to know whether Baldi knew these men. The admission of the evidence was within the discretion of the judge-its exclusion was not error in law.

[2] There was evidence for the jury of Martino's guilt. The stolen liquor was found in his house the day following the robbery. The automobile was found within a mile of his house. His relations with Baldi, his partnership with him in the illegal sale of liquor, and all the circumstances, were evidence to prove his guilt. His denial that he saw Baldi on the afternoon of August 13, when, in fact, he was at Martino's house and was carried by Martino to the car whence he could go to Watertown, indicated his guilty knowledge. See Commonwealth v. Devaney, 182 Mass. 33, 36, 64 N. E. 402; Commonwealth v. Hartford, 193 Mass. 464, 469, 79 N. E. 784.

[3] The defendants' motion that the commonwealth be ordered to elect upon which indictment it would proceed was overruled properly. The defendants were not as matter of law entitled to the ruling that the commonwealth should elect upon which indictment to proceed. The motion does not raise the question whether separate trials should have been ordered. It required the commonwealth to elect, and we are not called upon to decide whether a motion for separate trials should have been granted. In Commonwealth v. Rosenthal, 211 Mass. 50, 97 N. E. 609, Ann. Cas. 1913A, 1003, 37 L. R. A. (N. S.) 955, the defendant asked to be tried separately upon each one of the two indictments. This court in overruling the defendant's exception said, at page 52 (97 N. E. 609):

"Where the essential elements of the conduct which may constitute two distinct crimes are the same and to be proved in large part by the same evidence, and where the indictment might have been drawn legally so as to include both crimes, no right of the defendant secured to him by the law as matter of right is violated by compelling a joint trial of both indictments in the exercise of a sound judicial discretion." Commonwealth v. Seeley, 167 Mass. 163, 45 N. E. 91.

The statement in Pettes v. Commonwealth, 126 Mass. 242, that if the defendant is likely to be prejudiced, the court is authorized to direct the prosecutor to elect upon which count he will proceed, does not conflict with what is here decided. The proper exercise of the court's discretion is not raised by the defendants' request. They claimed that as matter of law the commonwealth should elect upon which indictment it relied. The court was dealing with a single course of criminal conduct, where the same evidence in substance would be required to prove such crime. There was no error in denying this motion.

[4] On cross-examination Meehan was asked if he saw anything indicating that Baldi knew any of the five men who robbed them.

[5] There was no error in excluding the conversations of Martino with Gillespie on the day following the robbery. They were self-serving declarations and were not within the exceptions to the rule excluding such testimony. The commonwealth introduced no evidence of conversations with Gillespie; the evidence was not offered to contradict the witness. Commonwealth v. Williams, 105 Mass. 62, 68; Commonwealth v. King, 202 Mass. 379, 385, 88 N. E. 454. See Commonwealth v. Cosseboom, 155 Mass. 298, 29 N. E. 463.

[6] The contention of the commonwealth was that Baldi received no order to deliver the liquor at Marlboro, that he made no effort to locate Galbo or secure his presence at court. To meet this contention the defendants showed that he was in jail for four months following August 13 and “didn't see much of anybody after that." The commonwealth then asked Baldi: "And you got out of jail when? A. On December-November, I think."

He was then asked if he had been in any jail since, and he answered, "Never." These questions and answers were excepted to. The commonwealth could negative the effect of the defendant's evidence of his imprisonment, by showing that he was free to have found Galbo since his release, that he had not been in another jail. No reversible error is shown in the admission of this evidence. Commonwealth v. Johnson, 188 Mass. 382, 74 N. E. 939, and cases cited.

What we have said disposes of the defendants' exceptions. We now deal with the report by the presiding judge in indictments numbered 9919 and 9926.

[7] By G. L. c. 278, § 30, in a criminal case in the superior court, if the defendant is convicted the judge may report the case if the defendant desires or consent to it. The word "conviction" is used in two different senses; it may include the judgment of the court following a verdict of guilty or confession of guilt, or may mean a verdict of guilty against the defendant or his confession in open court, without judgment or sentence. Commonwealth v. Gorham, 99 Mass. 420; Commonwealth v. Lockwood, 109 Mass. 323, 12 Am. Rep. 699; Munkley v. Hoyt, 179 Mass. 108, 60 N. E. 413. Under this statute a judge of the superior court can report a case after

a verdict of guilty and before sentence is imposed. See Commonwealth v. Carver, 224 Mass. 42, 112 N, E. 481; Commonwealth v. O'Neil, 233 Mass. 535, 543, 124 N. E. 482; Commonwealth v. Cronin, 245 Mass. 163, 139 N. E. 647. After the jury had returned a verdict of guilty in the cases numbered 9919 and 9926, they were placed on file. As to the filing of criminal cases, and its effect, see Attorney General v. Tufts, 239 Mass. 458, 537, 131 N. E. 573, 132 N. E. 322, 17 A. L. R. 274. The questions arising on the report in these cases present the questions already considered in the defendants' bill of exceptions. There was no error of law in the conduct of the trial.

The defendants' exceptions in cases numbered 9920 and 9921 are overruled. And the verdicts in cases numbered 9919 and 9926 and the order of the court placing these cases on file are to stand.

[blocks in formation]

Since memorandum of agreement contained every element of express formal contract, there was no variance in perjury prosecution between allegation that defendant in civil action signed five contracts and proof of five memoranda. 2. Perjury 11 (2)-False testimony as to alleged contracts held to be on material issue. Where alleged contracts under G. L. c. 106, cl. 3, would have been complete defense to is sue of express and implied warranties in action against defendant, false testimony by defendant

as to existence of contracts was material.

3. Criminal law 429 (2)-Reading plaintiff's testimony taken stenographically in civil action competent to show issues.

In prosecution for falsely testifying on material issue in civil action, testimony of plaintiff therein taken stenographically was admissible to show issues raised by pleadings. 4. Perjury ~32 (6) —Issues in former action submitted to jury held admissible.

In prosecution for falsely testifying in civil action on material issue, it was admissible to show what issues were submitted to jury.

5. Perjury 32 (7)-Record of plaintiff's testimony in civil case not inadmissible, because it corroborated his oral testimony in prosecution.

In prosecution for falsely testifying on material issue in civil action, record of testimony of plaintiff therein taken stenographically was not inadmissible, because in substance it corroborated his oral testimony in criminal case without objection.

6. Criminal law 766-Charge held not to leave to jury issue as to whether false testimony was material to issue.

Charge that, if jury believed evidence as to what issues were at former trial, then evidence which defendant falsely gave at the trial was material, did not leave issue of materiality to jury.

Exceptions from Superior Court, Middlesex County; Stanley E. Qua, Judge. John N. Aronson was convicted of perjury, and he excepts. Exceptions overruled. The jury was charged as follows:

"If you find that the testimony at the former trial has been correctly given here, and if you believe the evidence of E. as to what issues were that were tried out in that trial, then I instruct you that evidence which it is claimed this defendant falsely gave at that trial was material to the issues there involved."

Arthur K. Reading and Warren L. Bishop, both of Boston, for the Commonwealth. John J. Higgins, of Boston, for defendant.

PIERCE, J. The defendant was indicted for the crime of perjury. The indictment set forth:

"That in a proceeding in the course of justice before a justice of the superior court on the twenty-ninth day of January in the year of our Lord one thousand nine hundred and

twenty-three, at Cambridge, in the county of Middlesex aforesaid, on an issue within the jurisdiction of said court duly joined and tried before a jury of the said county between Fred Tillier, as plaintiff, and John N. Aronson, as defendant, said John N. Aronson was lawfully sworn as a witness. Whereupon it became and was material to said issue as to whether said Fred Tillier signed five contracts in the sight and presence of said John N. Aronson, and to this the said John N. Aronson did willfully and corruptly testify and say in substance and effect that said Fred Tillier signed five contracts in the sight and presence of said John N. Aronson; his said testimony as above set forth being false as he well knew."

At the trial, the writ, declaration and answer in the civil case of Tillier v. Aronson were admitted in evidence. The declaration was in three counts, and the plaintiff upon one or other of these counts sought to recover of the defendant damages for failure of the defendant to deliver to the plaintiff barrels such as the plaintiff had ordered, and paid for in advance.

Without objection, the testimony of Aronson taken stenographically at the civil trial was read to the jury. In substance this tes timony was that Aronson had not known Tillier before March 15, 1918, when Tillier

asked if he would sell him barrels in carload lots; that Aronson replied he would sell whatever he had in his yard; that Tillier I went down to the yard and looked over the

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