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(146 N.E.)

The defendant and his wife entered their home, where they lived together, about 30 minutes after 10 o'clock on the night of July 1, 1922. The defendant left his home the next morning about 4 o'clock, and a few minutes later, in company with his brother and a chauffeur, went by automobile to Salisbury Beach. Returning from the beach about 1 o'clock in the afternoon of July 2, he entered his home and there saw his wife, partly dressed, lying dead on the bed, with blood on her body and on the bedclothes. The commonwealth contended that the defendant killed his wife at some time between 30 minutes after 10 o'clock on the night of July 1 and 4 o'clock on the morning of July 2. The contention of the defendant was that, when he left his house on the morning of July 2, his wife was alive and bade him goodbye, and that he did not see her again until he found her dead.

CARROLL, J. The defendant was indicted, ant was heard to say to his wife during a for murder in the first degree of his wife, dispute between them, "Some time I will Maria Caruso, at Lawrence on July 2, 1922. kill you;" that on the inside of the door enThe jury returned a verdict of "guilty of tering the defendant's house there was a murder in the second degree." Yale lock and a large bolt underneath the lock. The defendant stated that his wife always bolted the door when he was out of the house; that on the morning of July 2, when he left the house, his wife was standing up and he asked her to go to bed; that she said, "All right, I will go to bed when you, go; I want to be sure that this door is locked;" that "she got hold of the knob and shook the door." He was asked how he opened this door on his return, and replied, "I take my key; I put it in the lock; I turned it; I opened the door." It also appeared that at some time after the defendant entered the house gas was escaping from an open gas jet. It did not distinctly appear when this gas jet was opened. When the defendant discovered the body of his wife he was much disturbed, and was seen coming from the house "crying and pulling his hair." In his statement to the police he said, "The gas got the best of me and I fell." There was evidence tending to show that this statement was false, and the commonwealth contended that his conduct after discovering the dead body was simulated, as was his apparently cheerful conduct during the day before the discovery was made. Without going further into the details, there was evidence to prove that the

in her home, when no one but the victim and the defendant were present. It was for the jury to say whether the evidence convinced them of the defendant's guilt. Commonwealth v. Best, 180 Mass. 492, 497, 62 N. E. 748.

There was evidence that numerous wounds were on the body of Mrs. Caruso, some of which were fatal, and several bruises, as well as nail marks and cuts on her face and neck; that a baseball bat belonging to the defendant was found in the house, "spotted with blood"; that it was sufficient to cause the injury found on Mrs. Caruso's forehead; | defendant's wife was murdered by him, while that a knife with human blood stains upon it was found in a container in the house; that some of the wounds could have been caused by this knife; that three "and possibly four" different weapons were used, and that "strong force was applied to the throat with the hand." The defendant and his wife occupied the same bed on the night of July 1. A jury could have found that no one else was in the house during the night; that after he left the tenement no one entered it until he returned. From the testimony showing the lividity, the temperature and stiffening of the body of the victim, it could have been found that she died on the morning of July 2, before the defendant left the home.

[2] Dr. Dow, the medical examiner of the district, testified in the district court; he died before the trial of the defendant in the superior court. The defendant objected to the stenographers reading their notes of Dr. Dow's testimony at the former trial, on the ground that the notes did not contain all of his testimony and the testimony was given "on a different issue." The court found as a fact that all the testimony of Dr. Dow was taken by one or both of the stenographers; [1] Mrs. Caruso was insured in the sum of that it was accurately taken; that counsel $750, payable to the defendant. The title for the defendant had an opportunity to to the real estate where they lived stood in cross-examine Dr. Dow and did cross-examher name; she had $900 on deposit standing ine him at the former trial. The former tesin the bank in her name. It appeared that timony of Dr. Dow at the trial of the deat one time the defendant and his wife had fendant in the district court was upon the trouble about the property; that she told same issue and was substantially reproduced him, “I am the owner of the property; get in all material particulars. It could have out;" that he went to California, but re- been found that all of his testimony was returned; that in September, 1918, the defend- ported, and repeated at the trial, by one or ant brought a libel for divorce against his both of the stenographers who took notes of wife, alleging cruel and abusive treatment; his testimony. There was no error in adthat there was no return of service on her, mitting this testimony. The rule laid down and the libel was dismissed in October of in Commonwealth v. Richards, 18 Pick. 434, that year; that at one time, about 2 years 29 Am. Dec. 608, requiring that all the tesand 6 months before the murder, the defend-timony of the deceased witness must be

proved, was complied with. See Ibanez v. Winston, 222 Mass. 129, 109 N. E. 814; Randall v. Peerless Motor Car Co., 212 Mass. 352, 385, 99 N. E. 221.

[8] The judge was not bound to give the request of the defendant; "If the jury are left in doubt as to whether Maria Caruso was killed before or after the defendant left [3] As bearing on the question by whom his home on the morning of July 2, 1922, the gas jet was opened and at what time, they should return a verdict of 'not guilty,'" there was testimony by the appliance man- in these exact words. The charge of the ager of the Lawrence Gas Company show-judge was complete, accurate and impartial; ing that about 10 cubic feet of gas an hour it dealt with all the essential questions. would pass through a two-burner hot plate Commonwealth v. Feci, 235 Mass. 562, 127 such as he found in the defendant's house in N. E. 602; Commonwealth v. Hughes, 183 December, 1922. The defendant excepted to Mass. 221, 66 N. E. 716. this testimony. His exception was a general one. It does not appear that any change was made in the burner between the date of the murder and December, 1922, and it does not appear that the defendant excepted to the testimony on the ground that the conditions were not the same. There was evidence that the appliance manager was qualified to testify. The judge could properly admit this testimony. There was no error of law in admitting it. New York Central Railroad v. Freedman, 240 Mass. 200, 210, 133 N. E. 101.

[4, 5] The evidence tending to show motive on the part of the defendant was properly admitted. Commonwealth v. Feci, 235 Mass. 562, 567, 127 N. E. 602, and cases cited. The defendant offered to show that there had been trouble between Mrs. Caruso and persons other than the defendant; that there was bad feeling between her and these third persons. This evidence was excluded. There was no evidence whatever connecting these persons with the murder. There was no error in the exclusion of this evidence. See Commonwealth v. Trefethen, 157 Mass. 180, 191, 31 N. E. 961, 24 L. R. A. 235; Commonwealth v. Abbott, 130 Mass. 472, 475.

[6, 7] The defendant called as a witness one Rosario Zappala, who testified in substance that Mrs. Caruso was alive at 8 o'clock in the morning of July 2. The commonwealth introduced testimony tending to show that he was convicted of the unlawful keeping for sale of intoxicating liquor, under

The remaining requests of the defendant had reference to the burden of proof. The jury were fully and correctly instructed on this question. The charge was fair and all the rights of the defendant were protected. The jury must have understood that they could not convict unless the commonwealth proved the commission of the crime by the defendant beyond a reasonable doubt. Commonwealth v. Costley, 118 Mass. 1, 24.

We have considered all the exceptions argued on the defendant's brief. There was no error in the manner in which the trial was conducted. The rulings of the judge and his instructions to the jury were correct. Exceptions overruled.

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1. Corporations 320 (1)-Suits by stockholders against officers of corporation not maintainable in equity to enforce personal rights.

Jurisdiction of equity over suits by stockholders against officers of corporation for wrongs committed by them against it cannot be maintained to enforce personal rights; it being interests of corporation alone which benefit damages, if recovered, must be paid. are to be enforced, and for whose exclusive

2. Corporations 320 (7)-Bill by stockholders against officers must allege suit is for corporation's benefit.

Bill by stockholders against officers of corporation for wrongs committed by latter against corporation must specifically allege that suit was for corporation's benefit. 3. Equity 239 Allegations of bill, well pleaded, taken as admitted by demurrer. Allegations of bill, well pleaded, are taken

the name of Alfio Zangri. Near the close
of the trial the defense stated it desired to
present at the opening of court the next
morning evidence that Zappala and Zangri
were different persons. The next morning
the court ordered the jury to disregard all
reference to Zappala being named in the rec-
ord of conviction, and everything in regard
to the record, and to disregard the record.
It must be presumed that the jury followed
this instruction. The testimony of Zappala
was not impeached by the record introduced as admitted by demurrer.
and subsequently withdrawn by the direction
of the judge. The defendant was not preju-
diced by this ruling. Clark v. Boston &
Maine Railroad, 164 Mass. 434, 439, 41 N. E.
666; Troy v. Rudnick, 198 Mass. 563, 569, 85
N. E. 177; Costello v. Crowell, 133 Mass. 352,
354, 355.

4. Banks and banking 315(2)-Directors of
trust company occupy position of trust as to
stockholders.

bank, directors of trust company occupied posiIn merger of trust company with national tion of trust towards its stockholders, and could not lawfully obtain undue advantage, or

(146 N.E.)

enrich themselves at expense of corporation or stockholders, in assenting to merger, nor legally segregate portion of its assets, to be turned over to them for their personal benefit.

5. Banks and banking 315(2)-Segregation by directors of part of assets of trust company held fraudulent and breach of trust.

Directors' segregation and setting apart of assets of trust company, to be divided among stockholders assenting to merger plan, was fraudulent and illegal, and breach of trust by directors, for which corporation was entitled to equitable relief.

6. Equity 150(1)-Bill held not multifari

ous.

Bill by stockholder, on behalf of himself and other stockholders, against directors of corporation, which set forth series of material acts participated in by defendants, acting together for common purpose to defraud plaintiff and others, was not multifarious.

7. Equity 143-Bill held certain and deflnite.

Allegations that defendant directors of trust company and defendant banking institution, acting severally and in collusion with others to divert funds and property of trust company in manner described, held certain and definite. 8. Banks and banking 315(1)-Bill held to allege fraud of directors and banks on corporation and stockholders.

Allegations of bill that defendant directors and banking institution acted in collusion to divert funds and property of trust company, being admitted by demurrer, constituted fraud on corporation and its stockholders, relief for which was in equity.

9. Equity 220-Demurrer to bill, as showing plaintiffs had adequate remedy at law, without merit, when not appearing on face.

Where it did not appear from face of bill that plaintiff had complete and adequate remedy at law, demurrer thereto on such ground was without merit.

10. Banks and banking

315(1)-Stockholders, protesting against bank's merger, acted with reasonable diligence.

Where, soon after February 7, date on which directors of trust company voted to merge it with bank, stockholder instructed counsel to institute suit, but at request of defendant's counsel suit was deferred pending conference, which was held March 27, stockholder acted with reasonable diligence in filing bill on March 29.

11. Equity 117-Demurrer not sustained, for want of necessary parties, on account of reference to certain parties against whom no relief was sought.

Demurrer to bill by stockholder against corporation and directors and other banks, to enjoin merger and consolidation of banks, could not be sustained for want of necessary parties, although "certain interests" and "certain persons" were referred to therein, against whom no relief was sought.

315(1)-Comptrol

12. Banks and banking ler of Currency not necessary party to suit by stockholder to enjoin bank merger.

In suit by stockholder of trust company troller of Currency and named realty company to enjoin its merger with national bank, Compwere not necessary parties; relief not being sought against them.

13. Equity 319-Objection that allegations were made without plaintiff's knowledge of facts stated not maintainable, in view of verification.

Objections that certain allegations of bill were made without averment as to plaintiff's knowledge of facts, or that he was informed of facts and believed them to be true, could not be sustained, in view of his oath that statements in bill were true, except those made on information and belief.

14. Equity 223 Failure of bill to allege that defendant had refused to take action with reference to matters alleged held not ground for demurrer.

Where allegations of fraud, collusion, and conspiracy by bank directors showed that they were incapable of representing corporation in any action or proceeding growing out of their conduct for which relief was sought, bill was not demurrable for failure to allege that, on notice and request by plaintiff stockholders, directors refused to take action with reference to matters referred to in bill.

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

of a court of equity over suits brought by, directors of the banks named as defendants, stockholders against the officers of a corpora- each stockholder in the trust company was tion, for wrongs committed by them against required to accept either $75 per share for the corporation, cannot be maintained to en- his stock in cash, or one share of common force personal rights, as it is the interests of stock of the Chapin National Bank for two the corporation alone which are to be en- shares of stock held by him in the trust comforced and for whose exclusive benefit dam-pany; that it was agreed between the direcages if recovered must be paid. The bill must specifically allege that suit is brought for the benefit of the corporation. Hayden v. Perfection Cooler Co., 227 Mass. 589, 116 N. E. 871, and cases cited. As there is no such allegation in this bill, and there are no pray-pany, making the actual value of each share ers based upon the bill as framed, it is defective. Leave is granted to make an amendment to perfect the bill in this respect (St. 1913, c. 716, § 3), and the case is considered on the assumption that such amendment will be made.

A demurrer to the original bill was sustained; after the allowance of an amendment, a demurrer to the amended bill was filed, and a decree entered overruling the demurrer. The case has been reported to this court.

tors of the bank and the trust company that the latter should pledge to deliver to the bank $300,000 in assets over all liabilities; that there were issued and outstanding 3,000 shares of the capital stock of the trust com

$100, as against $75 per share, which was offered to the holders in cash.

It is also alleged, in substance, that at the meeting last above referred to an agreement was entered into between persons connected with the directors of the bank and of the trust company by which $63,670.10 of the assets of the trust company (apart from the $300,000 which had been turned over to the bank) were segregated, to be paid over upon Icertain shares and divided between the bank and certain assenting stockholders of the trust company who appeared at the time to have been connected with the merger plan; that at that time the value of the common stock of the trust company agreed to be turned over to the Chapin National Bank, plus the amount so segregated, showed a book value of each share to be at least $120 as against the sum of $75 per share which the defendants proposed to pay the plaintiff and other stockholders not assenting to the merger.

[3] The allegations of the amended bill, well pleaded, are to be taken as admitted by the demurrer. It is alleged that at some time before December 1, 1923, certain interests connected with the board of directors of the Chapin National Bank acquired a control of the capital stock of the Atlas Trust Company for the purpose of an ultimate consolidation of that bank with the trust company; that certain persons at the suggestion of said interests caused a stockholders' meeting of the trust company to be held on or about Decem- There are allegations that the plaintiff and ber 2, 1923, at which meeting steps were pro- other stockholders at the meeting held on posed to convert the trust company into a February 1, 1924, objected to the plan and national bank, to be known as the Atlas Na- voted against it, but that the merger was autional Bank, preliminary to the consolidation thorized by a vote of more than two-thirds of the trust company with the Chapin Na- of the outstanding stock; that on February tional Bank; that thereafter a call for a 5, 1924, the Comptroller of the Currency was stockholders' meeting of the trust company notified of the action taken and authorized was purported to be sent out, designating the the merger; that the agreement above replace of meeting at the banking rooms of cited was for the purpose of bringing about the trust company on December 22, 1923, at a personal profit to the assenting stockhold'3 o'clock in the afternoon; that it was then ers and directors of the trust company in exand there voted to authorize the directors to cess of that to be received by other stockconvert the company into a national bank, to holders; that before December 1, 1923, cerbe known as the Atlas National Bank, fortain persons, connected either as stockholders the purpose of carrying out the plan of ulti-or directors of the bank and the trust commate merger with the Chapin National Bank. pany, collusively agreed to obtain control of It is further alleged that some time before a majority of the stock of the trust company December 18, 1923, certain persons connected to carry out the merger, and to accomplish with the Chapin National Bank applied to that result offered larger amounts per share the Comptroller of the Currency for permis- for the holdings of some stockholders than sion to organize a national bank under the were offered to the stockholders in general. name of the Atlas National Bank, to be lo- The bill contains other allegations which it cated at Springfield; that on that date the is unnecessary to consider in detail. permission of the Comptroller was obtained; [4, 5] The directors of the Atlas Trust Comthat, for the purpose of ratifying such merg-pany occupied a position of trust toward its er, a meeting of the stockholders of the trust stockholders and could not lawfully obtain company was called to be held on February 1, 1924; that at this meeting the plaintiff was represented by an agent who then learned that, by reason of the concerted action of

an undue advantage, or enrich themselves at the expense of the corporation or its stockholders who did not assent to the merger; nor could they legally segregate or set

(146 N.E.)

reasonable diligence. Almy v. Almy, Bigelow & Washburn, Inc., 235 Mass. 227, 126 N. E. 419; Monahan v. Harvard Brewing Co., 241 Mass. 286, 291, 135 N. E. 133.

pany to be turned over to them or to others makes it obvious that the plaintiff acted with for their personal benefit at the expense of the corporation or any of its stockholders. The segregation and setting apart of more than $60,000 of the assets of the trust company to be divided among stockholders assenting to the merger plan was fraudulent and illegal and a breach of trust on the part of the directors for which the corporation is entitled to equitable relief.

[6] The bill sets forth a series of material acts participated in by the defendants acting together for a common purpose to defraud the plaintiff and others similarly situated, and is not multifarious. Accordingly the fourth ground of the demurrer cannot be sustained. Ginn v. Almy, 212 Mass. 486, 99 N. E. 276; Raynes v. Sharp, 238 Mass. 20, 130 N. E. 199. [7, 8] The allegations that the defendant directors and the defendant banking institutions acting severally and in collusion with others for the purpose of diverting the funds and property of the trust company in the manner described, are certain and definite, and being admitted by the demurrer, constitute a fraud upon the corporation and its stockholders, relief for which exists in equity. It follows that the first and the seventeenth

grounds of the demurrer must be overruled. Von Arnim v. American Tube Works, 188 Mass. 515, 74 N. E. 680; United Zinc Co. v. Harwood, 216 Mass. 474, 476, 103 N. E. 1037, Ann. Cas. 1915B, 948; Raynes v. Sharp, supra; Hayden v. Perfection Cooler Co., supra; Guay v. Holland System Hull Co., 244 Mass. 240, 247, 138 N. E. 557; Clair v. Colmes, 245 Mass. 281, 139 N. E. 519.

[11, 12] The demurrer cannot be sustained for want of necessary parties. Although "certain interests" and "certain persons" are referred to in the bill, no relief is sought against them; they are described merely as participants in the alleged scheme entered into by the defendants to defraud the trust company. Nor does it appear that the Comptroller of the Currency or the Atlas Realty Company should have been joined; no relief is sought against them. Bay State Gas Co. v. Lawson, 188 Mass. 502, 74 N..E. 921; Von Arnim v. American Tube Works, supra.

[13] The objections that certain allegations are made without any averment as to the plaintiff's knowledge of the facts stated, or that he is informed of the facts and believes them to be true, cannot be sustained. The plaintiff made oath that the statements in the bill were true, except these made on information and belief and those he believes to be true.

[14, 15] The defendants further contend that it does not appear from the allegations of the bill as amended that upon notice and request of the plaintiff the directors of the Atlas Trust Company have refused to take action with reference to the matters referred to in the bill. It is well settled that where it is plain that such an application to a corporation for relief would be useless and in

[9] The third ground of demurrer is with-effectual the law does not require it to be out merit, and is overruled, as it does not appear from the face of the bill that the plaintiff has a complete and adequate remedy at law. The averments made and the relief sought plainly show that an action at law will not afford the Atlas Trust Company and its stockholders that relief to which they are entitled, but that the matter of complaint is a more fit subject for a bill in equity.

[10] It is alleged that soon after the acts of the defendants described in the bill were committed, namely, on February 7, 1924, the plaintiff instructed his counsel to institute this suit; that about four days later, at the request of counsel for the defendants, the plaintiff deferred filing the bill pending a conference between counsel which was held on or about March 27, 1924, at which no adjustment was made. It appears that the bill was filed on March 29, 1924. This recital

made. The allegations of fraud, collusion and conspiracy entered into by the directors, by which it is charged that a wrong has been committed, show that they are, in the nature of the case, incapable of representing the corporation in any action or proceeding growing out of their wrongful and fraudulent conduct for which relief is sought. To require application to be made to them to act as a condition precedent to maintaining a bill would be futile. This ground of demurrer for the reasons stated is overruled. Brewer v. Boston Theatre, 104 Mass. 378; Blair v. Telegram Newspaper Co., 172 Mass. 201, 51 N. E. 1080; Almy v. Almy, Bigelow & Washburn, Inc., supra.

The demurrer must be sustained unless the amendment hereinbefore referred to is made; if so made, the demurrer is overruled. Ordered accordingly.

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