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of New Bedford on cotton alleged to have , stating in substance, that "we have sold you been taxable to complainants April 1, 1920. on your order

the bales of cotton" Findings for respondent, and complainants ordered, which is "to be stored in New Bedexcept. Exceptions overruled.

ford but not to be carried more than six

months from date of invoice." Otis S. Cook, M. R. Brownell, and F. H. «The cotton to be stored and insured by you Taber, all of New Bedford, for complainants. for us until paid for, but the title not to pass

B. B. Barney, of New Bedford, for respond from us until paid for; nor until the surent.

render of your receipt issued to us against

the same.” BRALEY, J. This is an appeal under G.

The exceptions recite that, upon the comL. c. 59, $ 65, from the refusal of the asses-ing in of the bill of lading, the complainants sors of the city to abate a tax on 2,878 bales made arrangements with the bank to have of cotton alleged to have been taxable to the the cotton stored in a warehouse designated complainants on April 1, 1920. The trial

by the mill, and the receipt which issued ran judge having found and ordered judgment to them, or to their order, and thereupon for the respondent, the case is before us on

they pledged it to secure their note for an the complainants' exceptions to the refusal

amount equal to the draft, to the payment of to give the first, second, fifth, ninth and which the proceeds of the note were to be tenth requests, and to all the findings and applied. The storage and insurance charges rulings inconsistent therewith. St. 1909, c.

were paid by the mill pending the time when 490, pt. 1, § 23, as amended by St. 1918, c. it should pay the complainants the purchase 129, under which the assessment was levied, price, who then could use the money in pay. reads as follows:

ment of their note to the bank, and receive “All personal estate, within or without the the pledged receipt, which upon transference commonwealth, shall be assessed to the owner to the mill enabled it to obtain delivery. Of in the city or town in which he is an inhabi- the 2,878 bales, 2,572 bales were to be thus tant on the first day of April, except as pro- transferred. The only difference as to the vided in part III and in the following clause of this section: First. All tangible personal payment for the remaining 306 bales was, property, except ships and vessels, shall be tax- that instead of borrowing on the receipts, ed to the owner in the city or town where it is they used their own funds in settlement of situated on the first day of April."

the draft. It appears, and the judge so

found, that the cotton intended for each The question for decision is whether the mill was separate, and could be identified, complainants, on April 1, 1920, were the own- and that the taking of the receipts furnished ers of the cotton within the meaning of the the complainants with security for payment statute. It was stored in public warehouses of the price. But throughout all the transin the city, for which negotiable warehouse actions in whatever light they may be receipts were issued in the name of the com- viewed, the provisions of the sale note, that plainants, who were nonresident cotton brok- | “title not to pass from us until paid for, nor ers. It may be said at the outset that the re- until the surrender of your receipt issued to ceipts were documents of title under G. L C. us against the same," has never been abro105, 88 46, 54, and that, as between the com- gated nor modified. The mill could not obplainants and the purchasers, title could be tain possession, nor acquire ownership until passed at such time or times as the parties payment, and the title consequently remained mutually intended. G. L. C. 106, § 20 (1). in the complainants, who under the mode of The general course of business as described dealing either held or controlled the receipts in the record shows, that upon receiving an for all the cotton on April 1, 1920, payment order for raw cotton from a local mill, they for which by the mill was yet to be made. bought from a Southern dealer at a less The assessment to them as owners was jusprice the exact quantity ordered. The dealer tified by the statute. Raymond v. Worcester, then shipped the cotton consigned to them, 172 Mass. 205, 51 N. E. 1077. See Donovan and at the same time forwarded to "a bank v. Haverhill, 247 Mass. 69, 72, 141 N. E. 564, in or near the city" the bill of lading to 30 A. L. R. 338. We find no error of law which was attached a sight draft drawn on in the denial of the requests, or in the rulthe complainants for the price. But before ings, to which the petitioners excepted. arrival they delivered to the mill a sale note, Exceptions overruled.

caso

(146 N.E.)

17. Criminal law Om 1023(9)-Criminal COMMONWEALTH v. BALDI et al. (two cas- may be reported, after verdict of guilty, bees). SAME v. BALDI. SAME v.

fore sentence; "conviction." MARTINO.

Under G. L. c. 278, § 30, judge of superior

court can report case, after verdict of guilty, (Supreme Judicial Court of Massachusetts. and before sentence is imposed; "conviction,” Middlesex. Jan. 9, 1925.)

as used therein, including judgment following 1. Robbery Cm 24(1)-Evidence held to sup.

verdict of guilty or confession of guilt, or it port verdict of guilty of robbery, being armed. may mean verdict of guilty against defendant,

or his confession in open court, without judgEvidence that defendant was principal in

ment or sentence. scheme to rob, and was present when it was executed, held to support verdict of guilty of

[Ed. Note.-For other definitions, see Words

and Phrases, First and Second Series, Convictrobbery, being armed.

ed-Conviction.) 2. Robbery C 24 (1)-Evidence held to sup. port verdict of guilt as accessory before the Exceptions from Superior Criminal Court, fact of robbery.

Middlesex County; F. W. Fosdick, Judge. Evidence which connected defendant with principal in scheme to rob held sufficient to sup

Hugo Baldi and Bernardo Martino were port conviction as accessory before the fact of found guilty of various offenses, recited berobbery.

| low, and they except after sentence. Excep

tions overruled. Verdicts affirmed. 3. Criminal law m622(2)-Motion to require commonwealth to elect indictment under R. T. Bushnell, Asst. Dist. Atty., of Boston, which it would proceed rightly overruled.

for the Commonwealth, Where defendants were indicted jointly or W. S. Kinney, of Boston, for defendants. severally for robbery, being armed, for being accessory before the fact of robbery, for con- CARROLL, J. The defendant Baldi was spiracy to rob, and for receiving stolen goods, found guilty and sentenced on an indictment there was no error in overruling motion to re- (numbered 9921) charging him with robbery quire commonwealth to elect under which indict. ment it would proceed, where there was but a

of Dennis Meehan, being armed. The desingle course of criminal conduct, and same evi- fendant Martino was found guilty and sendence in substance would be required to prove tenced on an indictment (numbered 9920) such crime.

charging him as an accessory before the fact 4. Criminal law +383—Question to prosecut.

to the robbery of Mechan. These two cases ing witness in robbery, as to whether he saw

are before us on the defendants' bill of excep. anything indicating that defendant knew men tions. 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 dis- conspiracy to commit the crime of robbery appeared, and prosecutor was bound by others from Meehan, and indictment numbered 9926, and placed where he could see little of what was going on, and had no opportunity to know

against Martino for receiving stolen goods, whether defendant knew the other men, exclud

were reported to this court, the evidence in ing evidence on cross-examination, as to wheth- the bill of exceptions being incorporated in er he saw anything indicating that defendant the report. These four indictments were knew any of the five men who robbed him, was tried together with four other indictments, without error.

in two of which Baldi was charged with being 5. Criminal law Om 413(1)-Self-serving decla- an accessory after the fact to the murder ration of defendant, in conversation day fol. of John B. Gourard, and in two of which lowing robbery, rightly excluded.

Martino was charged with the same crime. There was no error in excluding conversa- In these four last-mentioned indictments, tions of defendants on day following robbery, verdicts were ordered for the defendants. they being self-serving declarations, and not Eight cases were tried together. Before the within exceptions to rule excluding them, and jury was impaneled the defendants moved not being offered to contradict.

that the commonwealth be required to elect 6. Criminal law em 361(3)-Evidence negativ- upon which of these indictments it would pro

ing effect of defendant's evidence of imprison- ceed against the defendants. The motion was ment as excuse for not procuring witness overruled. The defendants moved at the rightly received.

close of evidence that a verdict of not guilty Where defendant, in prosecution for rob- be ordered in cases numbered 9919, 9926, 9921 bery, claimed that his imprisonment shortly and 9920, which motion was denied, the dethereafter was excuse for not procuring defense witness, commonwealth could negative ef

fendants excepting. fect of his evidence of imprisonment by show

In August, 1923, Baldi arranged with one ing that he was free to have found witness Wortham to furnish 75 cases of Scotch whissince release, and that he had not been in an- ky. Baldi, during the two years previous,

had several transactions with Wortham in

other jail.

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

· volving the sale of liquor. On the night of house in Newton on that afternoon; that August 13, Wortham met Baldi in Watertown Martino drove him to a place where Baldi and went with him to Waltham, where Mee- took the car for Watertown, about 30 min. han, from whom Wortham purchased the liq. utes after 5 o'clock. The evidence showed uor, met them. The original agreement was that the liquor was to be delivered, according to deliver the whisky at Clinton, but on Au- to the original arrangement with Wortham, gust 13 Baldi notified Wortham to deliver at Clinton to one John Galbo. On August 13, it at Marlboro. There was evidence that Baldi directed that the liquor be delivered Meehan met them at Waltham, both Wortham at Marlboro. When Baldi was asked if and Baldi accompanied Meehan in a Packard there was such a person as Galbo he replied, automobile, driven by Meehan, in which ma- "I don't know," and also admitted that he had chine were 24 cases of Scotch whisky, and made no effort to find Galbo. that another car was to follow them. Baldi, It appeared that the icehouse in question Wortham, and Meehan started for Marl- was owned by a company of which John B. borough, and on the trip the car in the rear Gourard was president. He went to the ice was lost track of. On arriving at Marl- house on the night of. August 13 just before borough, on the main highway where there Baldi untied himself. Shots were fired, one was a sign, Baldi directed Meehan to turn of them striking Gourard and as a result of into a driveway; he drove in this way about which he died. He did not identify either 200 yards to an icehouse, and they were met of the defendants. There was evidence for by two men who directed Meehan to drive to the jury to justify the verdict of guilty on the door of the icehouse, Baldi saying he the four indictments upon which the jury would return to the main highway and look passed. for the other car. When Meehan came to The place of delivery was selected by Baldi, the door, two men armed with drawn revolv- it was not known by Wortham or Meehan. ers seized Wortham and tied him with ropes; Baldi on August 13 directed that the liquor at the same time three other men over- should be delivered at Marlboro although powered Meehan and bound him. Wortham it was supposed it was to go to Galbo at and Meehan were taken to the icehouse and Clinton. When Baldi was tied up, he was stood against the wall, Meehan being robbed taken to a corner diagonally opposite to Meeof $2,900 in cash, a couple of card cases, and a han and Wortham and the jury could find pocketknife, the robbers "leaving at his re that this was done so that Wortham and quest some keys and also leaving a diamond Meehan could not see him. He alone of the ring worth $500, which he was wearing." three men was able to untie himself; he Wortham was robbed of $3, “being left with requested Meehan and Wortham to tie him a little small change." About five minutes again; a gun was found at the spot where after this robbery, Baldi was brought into Baldi was supposed to be tied. Meehan and the icehouse tied, and placed against the Wortham were robbed of nearly everything wall, and in a few minutes was placed in a of value except the ring, which may have corner diagonally opposite to Meehan and been overlooked, while Baldi's funds, conWortham. The sound of an approaching au- sisting of $17, were not taken from him. The tomobile was heard. Baldi freed himself stolen liquor was found in his partner's home from his bonds and freed Wortham and Mee- and near by the automobile of Meehan's was han. A flashlight was seen, whereupon found. Baldi and his partner were together Baldi said: "Tie me up again; if we are not August 13, and Martino drove Baldi to a tied when they come in they will kill us all,” place where he could take a car for WaterWhen Baldi was arrested, $47 in cash, a town. Baldi made no effort to locate Galbo wallet and razor were found upon him. After who was supposed to live in Clinton, and his arrest, a gun was found in the sawdust was represented to be the purchaser. where Baldi had been taken. The next day [1] Considering all the evidence, the jury the 24 cases of Scotch whisky, which were in could find that Baldi was the principal and Meehan's Packard car, were found in Mar- priine mover in the scheme by which Wortham tino's cellar in Newton, covered with auto- and Meehan were to be taken to this place in mobile robes from Meehan's car, and the Marlboro, where Baldi's associates were prePackard car belonging to Meehan was found pared to meet and rob them of their monin Newton, about three-quarters of a mile ey and property; that Baldi's being bound from Martino's house.

and placed in the barn was a mere pretense Baldi and Martino were partners in the and a part of the plan to divert suspicion illegal sale of liquor, although Martino testi- | from himself. The existence of the scheme fied that he knew nothing of this particular was a question for the jury. Baldi was prestransaction in question and did not know who ent when it was put into execution; it could put the liquor in his cellar. On cross-ex. be found he was acting in conjunction with amination of Martino, he admitted that he the robbers and affording them aid; that the told the police officers that he had not seen weapon found was in his possession. There Baldi on the afternoon of August 13. There was evidence therefore that he was the prinwas evidence that Baldi was at Martino's cipal in robbing Meehan and was one of the

(146 N.E.) conspirators. Commonwealth V. Lucas, 2 , This was excluded and the defendants exAllen, 175; Commonwealth v. Clune, 162 cepted. Meehan was ordered to go to the Mass. 206, 214, 38 N. E. 435. See Common- door of the icehouse almost immediately on wealth v. Reed, 162 Mass, 215, 218, 219, 38 his arrival. Baldi disappeared. Meehan was N. E. 364.

bound and placed with his face against the [2] There was evidence for the jury of Mar-wall, so that in the darkness of the night he tino's guilt. The stolen liquor was found in could see little, if anything, of what was gohis house the day following the robbery. The ing on. He had little, if any, opportunity to automobile was found within a mile of his know whether Baldi knew these men. The bouse. His relations with Baldi, his partner- admission of the evidence was within the ship with him in the illegal sale of liquor, discretion of the judge—its exclusion was and all the circumstances, were evidence to not error in law. prove his guilt. His denial that he saw Baldi [5] There was no error in excluding the on the afternoon of August 13, when, in fact, conversations of Martino with Gillespie on he was at Martino's house and was carried the day following the robbery. They were by Martino to the car whence he could go to self-serving declarations and were not within Watertown, indicated his guilty knowledge. the exceptions to the rule excluding such tesSee Commonwealth v. Devaney, 182 Mass. 33, timony. The commonwealth introduced no 36, 64 N. E. 402; Commonwealth v. Hartford, evidence of conversations with Gillespie; the 193 Mass. 464, 469, 79 N. E. 784.

evidence was not offered to contradict the (3] The defendants' motion that the com- witness. Commonwealth v. Williams, 105 monwealth be ordered to elect upon which in- Mass. 62, 68; Commonwealth v. King, 202 dictment it would proceed was overruled Mass. 379, 385, 88 N. E. 454. See Commonproperly. The defendants were not as mat- wealth v. Cosseboom, 155 Mass. 298, 29 N. E. ter of law entitled to the ruling that the com- 463. monwealth should elect upon which indict- [6] The contention of the commonwealth ment to proceed. The motion does not raise was that Baldi received no order to deliver the question whether separate trials should the liquor at Marlboro, that he made no have been ordered. It required the common- effort to locate Galbo or secure his presence wealth to elect, and we are not called upon at court. To meet this contention the defendto decide whether a motion for separate trials ants showed that he was in jail for four should have been granted. In Commonwealth months following August 13 and "didn't see V. Rosenthal, 211 Mass. 50, 97 N. E. 609, Ann. much of anybody after that.” The commonCas. 1913A, 1003, 37 L. R. A. (N. S.) 955, the wealth then asked Baldi: “And you got out defendant asked to be tried separately upon of jail when? A. On December-November, each one of the two indictments. This court I think." in overruling the defendant's exception said, He was then asked if he had been in any at page 52 (97 N. E. 609):

jail since, and he answered, “Never." These "Where the essential elements of the conduct questions and answers were excepted to. The which may constitute two distinct crimes are commonwealth could negative the effect of the same and to be proved in large part by the the defendant's evidence of his imprisonment, game evidence, and where the indictment might by showing that he was free to have found have been drawn legally so as to include both | Galbo since his release, that he had not been crimes, no right of the defendant secured to in another jail. No reversible error is shown him by the law as matter of right is violated by in the admission of this evidence. Commoncompelling a joint trial of both indictments in the exercise of a sound judicial discretion." wealth v. Johnson, 188 Mass. 382, 74 N. E. Commonwealth v. Seeley, 167 Mass. 163, 45 N. 939, and cases cited. E. 91.

What we have said disposes of the defend

ants' exceptions. We now deal with the reThe statement in Pettes v, Commonwealth, port by the presiding judge in indictments 126 Mass. 242, that if the defendant is likely numbered 9919 and 9926. to be prejudiced, the court is authorized to [7] By G. L. C. 278, 8 30, in a criminal case direct the prosecutor to elect upon which in the superior court, if the defendant is concount he will proceed, does not conflict with victed the judge may report the case if the what is here decided. The proper exercise defendant desires or consent to it. The word of the court's discretion is not raised by the "conviction” is used in two different senses; defendants' request. They claimed that as it may include the judgment of the court folmatter of law the commonwealth should elect lowing á verdict of guilty or confession of upon which indictment it relied. The court guilt, or may mean a verdict of guilty was dealing with a single course of criminal against the defendant or his confession in conduct, where the same evidence in sub- open court, without judgment or sentence. stance would be required to prove such crime. Commonwealth v. Gorham, 99 Mass. 420; There was no error in denying this motion. Commonwealth v. Lockwood, 109 Mass. 323,

[4] On cross-examination Meehan was ask- 12 Am. Rep. 699; Munkley v. Hoyt, 179 Mass. ed if he saw anything indicating that Baldi 108, 60 N. E. 413. Under this statute a judge knew any of the five men who robbed them. of the superior court can report a case after

a verdict of guilty and before sentence is im- | 6. Criminal law Ow766—Charge held not to posed. See Commonwealth v. Carver, 224 leave to jury issue as to whether false tes. Mass. 42, 112 N, E. 481; Commonwealth v.

timony was material to issue. O'Neil, 233 Mass. 535, 543, 124 N. E. 482; Charge that, if jury believed evidence as Commonwealth v. Cronin, 245 Mass. 163, 139 to what issues were at former trial, then evi

dence which defendant falsely gave at the N. E. 647. After the jury had returned a ver

trial was material, did not leave issue of madict of guilty in the cases numbered 9919 and

teriality to jury. 9926, they were placed on file. As to the fil ing of criminal cases, and its effect, see At

Exceptions from Superior Court, Middletorney General v. Tufts, 239 Mass. 458, 537, sex County; Stanley E. Qua, Judge. 131 N. E. 573, 132 N. E. 322, 17 A. L. R. 274.

John N. Aronson was convicted of perjury, The questions arising on the report in these cases present the questions already considered and he excepts. Exceptions overruled. in the defendants' bill of exceptions. There The jury was charged as follows: was no error of law in the conduct of the

"If you find that the testimony at the fortrial.

mer trial has been correctly given here, and if The defendants' exceptions in cases num- you believe the evidence of E. as to what isbered 9920 and 9921 are overruled. And the sues were that were tried out in that trial, verdicts in cases numbered 9919 and 9926 and then I instruct you that evidence which it is the order of the court placing these cases on

claimed this defendant falsely gave at that trial

was material to the issues there involved." file are to stand. So ordered.

Arthur K. Reading and Warren L. Bishop, both of Boston, for the Commonwealth.

John J. Higgins, of Boston, for defendant. COMMONWEALTH V, ARONSON.

PIERCE, J. The defendant was indicted (Supreme Judicial Court of Massachusetts. for the crime of perjury. The indictment set Middlesex. Jan. 10, 1925.)

forth: 1. Perjury On 29(4)-No variance between al “That in a proceeding in the course of jus

legation and proof that defendant falsely tes. tice before a justice of the superior court on tified at former trial,

the twenty-ninth day of January in the year Since memorandum of agreement contained twenty-three, at Cambridge, in the county of

of our Lord one thousand nine hundred and every element of express formal contract, there Middlesex aforesaid, on was no variance in perjury prosecution between jurisdiction of said court duly joined and tried

an issue within the allegation that defendant in civil action signed before a jury of the said county between Fred five contracts and proof of five memoranda.

Tillier, as plaintiff, and John N. Aronson, as 2. Perjury Cm11 (2)—False testimony as to al. defendant, said John N. Aronson was lawfully leged contracts held to be on material issue. sworn as a witness. Whereupon it became

Where alleged contracts under G. L. c. 106, and was material to said issue as to whether cl. 3, would have been complete defense to is said Fred Tillier signed five contracts in the sue of express and implied warranties in action sight and presence of said John N. Aronson, against defendant, false testimony by defendant and to this the said John N. Aronson did willas to existence of contracts was material,

fully and corruptly testify and say in sub

stance and effect that said Fred Tillier signed 3. Criminal law Ow429(2)-Reading plaintiff's five contracts in the sight and presence of said

testimony taken stenographically in civil ac- John N. Aronson; his said testimony as above tion competent to show issues.

set forth being false as he well knew." In prosecution for falsely testifying on material issue in civil action, testimony of

At the trial, the writ, declaration and anplaintiff therein taken stenographically was swer in the civil case of Tillier V. Aronson admissible to show issues raised by pleadings. were admitted in evidence. The declaration 4. Perjury 32(6)- Issues in former action

was in three counts, and the plaintiff upon submitted to jury held admissible.

one or other of these counts sought to reIn prosecution for falsely testifying in civil cover of the defendant damages for failure action on material issue, it was admissible to of the defendant to deliver to the plaintiff show what issues were submitted to jury.

barrels such as the plaintiff had ordered, and

paid for in advance. 5. Perjury Omw32(7)-Record of plaintiff's tes. timony in civil case not inadmissible, be- son taken stenographically at the civil trial

Without objection, the testimony of Aroncause it corroborated his oral testimony in

was read to the jury. In substance this tes. prosecution.

timony was that Aronson had not known TilIn prosecution for falsely testifying on material issue in civil action, record of testimony asked if he would sell him barrels in carload

lier before March 15, 1918, when Tillier of plaintiff therein taken stenographically was not inadmissible, because in substance it cor- | lots; that Aronson replied he would sell roborated his oral testimony in criminal case whatever he had in his yard; that Tillier without objection.

went down to the yard and looked over the

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

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