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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Sandler, 368
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Murray P. Reiser,
Terence M. Troyer, Asst. Dist. Atty., for the
Commonwealth.
Before [368
QUIRICO, Justice.
The
defendant was found guilty by a jury at a single trial on six indictments, each
of which charged the crime commonly referred to as receiving stolen
property. G.L. c. 266, s 60. On each of five of the indictments he was
sentenced to the house of correction for the term of one year, all sentences to
run concurrently and all being suspended for one year; and on the sixth indictment
he was fined $250. This is the
defendant's consolidated appeal therefrom under G.L. c. 278, ss 33A‑‑33G. The appeal was originally entered in the
The
principal alleged errors argued by the defendant on this appeal are the
following actions by the judge before or during the trial: (1) the denial of
his motions to suppress as evidence the stolen goods which were seized by the
police without a search warrant, (2) the denial of his motion for a mistrial
which he requested because of [368
Mass. 731] an alleged ethnic slur
against him by a prosecution witness, (3) the rulings on several evidentiary
questions which arose during the trial, (4) the denial of motions for directed
verdicts made at the close of the Commonwealth's opening, at the close of the
Commonwealth's evidence, and again at the close of all the evidence, and (5)
the refusal to instruct the jury that as to the goods involved in indictments nos. 92,675; 92,676 and 92,677 they could
not find that the goods were 'recently stolen,' and the giving of an
instruction that it was a question of fact for the jury to determine whether
those goods were 'recently stolen.'
For the
reasons stated below, we hold that there was no error and that the judgments on
all indictments should be affirmed.
We
summarize certain facts which are not in dispute. On February 4, 1971, several State and town
police officers, with the permission of the owner, one Raymond Drew, entered a
barn located at the rear of 16 Washington Street in Reading, and seized and
removed therefrom a large quantity of merchandise. The parties stipulated that all of this
property had been stolen, and that it was the same property which the defendant
is charged, in the six indictments involved in this case, with having received
knowing it to have been stolen.
([FN1]) The police acted without
a search warrant. The defendant filed a
motion as to each indictment to suppress all of the merchandise as [368 Mass. 732] evidence, alleging that the warrantless search of the premises
and seizure of the merchandise were unlawful.
Before empanelling the jury the judge heard evidence and arguments on
the motions to suppress, after which he made express oral findings and rulings
thereon which appear in the transcript of the hearing, and denied the
motions. The judge's findings and
rulings will be summarized in the discussion relating to the denial of the motions.
Additional
appropriate statements of facts or of evidence will be made in the discussion
of the other alleged errors assigned by the defendant.
1. Motion to Suppress Evidence. We summarize the facts found by the judge in
relation to his denial of the defendant's motions to suppress the merchandise
allegedly unlawfully seized by the police officers. At all times material to the motions, Raymond
Drew rented to the defendant as a tenant at will a portion of a two‑story
barn located in Reading. The barn thus
rented was connected to another building owned by Drew. In the wall between the barn and other
building there was an opening from which a person or persons unknown had
removed a door, thus permitting passage between the two buildings.
On or
about February 3, 1971, certain police officers who were investigating the
reported theft of personal property asked Drew about the ownership or rental of
the barn and Drew told them that it had been rented to the defendant. On the basis of that information, the police
officers went to see the defendant the next day, February 4, 1971, at his place
of business in Reading. They gave him
the so called Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966)), specifically directed his attention to the
subject of the barn and to certain goods then in the barn, and asked him
whether he had rented the barn. He
denied renting the barn or storing any property there, and he said that the
only places which he rented or used for storage were the store [368 Mass. 733] where the questioning was going on and a couple of trailers in
the back of that building. The judge
concluded 'that the defendant specifically disclaimed in
affirmative fashion any knowledge of renting the locus (the barn) or of owning
any of the merchandise at that locus,' and 'that at least one of the police
officers, the primary questioner of the defendant at that time, did not believe
the defendant's denial of any renting relationship as to the locus.'
The police
officers then returned to the landlord, Drew, and told him of the defendant's
disclaimer of any rental relationship in so far as the barn was concerned. Thereupon Drew consented to the entry by the
police officers into the barn. The
officers first entered the part of the building not rented to the defendant and
which was occupied by Drew, and from that point they looked through the opening
described above and into the barn rented to the defendant, thus seeking the
matterials stored in the barn to the extent that the opening afforded a view of
the interior of the barn. They then
obtained permission from Drew to enter the barn rented by the defendant. The officers gained entry to the barn by
breaking a lock on an outer door. In the
barn the officers found the various articles described in the six indictments
against the defendant and in the Commonwealth's particulars thereto. They are the same articles referred to in the
defendant's motions to suppress.
The judge
then stated several general conclusions and rulings which we summarize: (1) the
defendant had standing to question the validity of the seizure of the
merchandise in the barn, citing Commonwealth v. Dirring, 354 Mass. 523, 238,
N.E.2d 508 (1968), and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4
L.Ed.2d 697 (1960); (2) the defendant was warned by the police officers that he
was not required to make any statement, but he chose to make a statement in
which he totally disavowed and disclaimed any interest in the barn or in the
goods stored therein; (3) having done [368
Mass. 734] that, the defendant
cannot now be heard to complain that his constitutional rights were violated by
reason of the fact that the officers did not first procure a search warrant;
and (4) in these circumstances it was sufficient that the officers obtained the
permission of the owner, Drew. The judge
cited Commonwealth v. Mayer, 349 Mass. 253, 207 N.E.2d 686 (1965), Abel v.
United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), and
Friedman v. United States, 347 F.2d 697, 704 (8th Cir. 1965).
[1][2][3]
The evidence supported the judge's subsidiary findings, and the subsidiary
findings in turn supported his general conclusions. His rulings of law were correct, and there is
nothing which we need add to what he placed in the record in denying the
motions to suppress. There was no error
in that respect.
2. Motion for Mistrial. One of the prosecution witnesses was a
Reading police officer. In cross‑examination
he testified that several years earlier he had had a dispute with the defendant
as a result of which he was quite angry with him, but that he was not angry
with him at the time he was testifying.
On redirect examination the prosecutor brought out that the dispute had
occurred six to seven years earlier and he asked the witness what the dispute
was about. The witness said that he had
purchased some fertilizer from the defendant, that the defendant had loaned him
a spreader, that he delayed several days in returning the spreader, and that
when he entered the store to return it the defendant referred to him as a
'bastard' and he said to the defendant, 'You Jew s‑‑‑ of a
b_ _.'
The judge then stopped him, the defendant moved for a mistrial and the
judge denied the motion. The judge
instructed the witness to refrain from using such language and instructed the
jury to disregard the language.
[4] The
defendant calls the language of the witness 'an ethnic slur' and 'religious
epithets' giving rise to prejudice which required the granting of a mistrial. We [368
Mass. 735] do not agree. The decision whether to handle the situation by declaring a mistrial
or by instructing the jury to disregard the statements of the witness was
discretionary with the judge. He did not
abuse his discretion.
3. Evidentiary Rulings. The defendant has assigned as alleged errors
a number of evidentiary rulings by the judge.
We hold that there was no error in any of the rulings. The evidentiary questions are not novel, and
most of the questioned rulings involved the element of judicial discretion with
no showing of any abuse of that discretion.
We therefore describe the alleged errors only to the extent necessary to
identify them in disposing of the claims of error.
[5][6] (a)
The judge allowed a police officer to testify that certain hand painted price
signs in the defendant's store were the same type signs as one found attached
to an empty carton in the barn. The
police had taken and saved the carton and the sign attached, but before trial
they had been destroyed by mistake after a water leak in the police office
where they were being kept. The witness
described the signs at the store and the one found in the barn by size, color,
and similarity of lettering or numbering.
The defendant's argument on this point is not clear. It appears to be in part that because the
original signs were not produced for introduction in evidence, no evidence
about their similarity was admissible, and in part that the officer did not
possess the requisite qualifications to express the opinion on the similarity
of the signs. The argument, however
understood, is without merit. Neyes v.
Noyes, 224 Mass. 125, 129‑‑130, 112 N.E. 850 (1916). Commonwealth v. Cataldo, 326 Mass. 373, 376,
94 N.E.2d 761 (1950). See Commonwealth
v. Sturtivant, 117 Mass. 122, 133‑‑136 (1875). In Commonwealth v. Tracy, 349 Mass. 87, 95,
207 N.E.2d 16, 21 (195), we said: 'It has long been held that summary
descriptions of things, it based on the sensory reactions of men in general and
not requiring special learning or experiment, may be admissible as statements [368 Mass. 736] of observed facts.'
Commonwealth v. Robertson, 357 Mass. 559, 563, 259 N.E.2d 553
(1970). ([FN2])
[7] (b)
The landlord, Drew, was one of the prosecution's witnesses, and he testified
that the defendant had rented from him the barn in which the police found the
stolen merchandise described in the indictments against the defendant. The defendant attempted to impeach Drew's
credibility in a lengthy and far‑reaching cross‑examination, and
the judge gave him wide latitude in that attempt. The defendant in fact contended that he had
never rented the barn in question, and that Drew had 'framed' him in regard to
that merchandise to cover his own participation in the sale of some stolen motor
vehicles. ([FN3]) Before he testified against the defendant,
Drew had been indicted on charges growing out of the alleged sale of stolen
motor vehicles, but he had not been tried on those indictments. The defendant pressed hard and long for the
right (1) to present evidence that Drew had been so indicted and (2) to
present evidence, in part through the cross‑examination of Drew and in
part through other witnesses, to prove that Drew had in fact sold stolen motor
vehicles. It was the defendant's argument
that 'if a man is in the business of running a [368 Mass. 737] fencing
operation, he is not going to be selling just one particular form of
goods.' He argued that if he could prove
that Drew sold stolen automobiles that would be evidence that he and not the
defendant had received the stolen merchandise which was in the barn. The judge correctly excluded all of that
evidence.
However,
in almost all other respects, the judge allowed the defendant's counsel great
latitude in the cross‑examination of Drew as indicated by the following
statement: 'I will permit you to inquire of this witness as to any inducements,
promises, threats, whatever it may be that might affect his credibility or
testimony or might induce him to give incriminating evidence against your
defendant. You may do that. That is as far as we are going to go.' The judge also directed counsel's attention
to the decision in Commonwealth v. Murphy, 282 Mass. 593, 599, 185 N.E. 486
(1933), dealing with the right of a defendant in a criminal case to present
evidence tending to prove that the crime for which he stands charged was
committed by another person. The judge
then said: 'I will permit you to come within the Murphy case to the extent that
you can produce probative evidence that will directly connect . . . Drew with these goods of which your client is
charged. If you cannot do that, it seems
to me you do not fall within the Murphy case.'
Again, shortly thereafter the judge said: 'Now, as far as this witness
(Drew) is concerned, certainly I am going to permit you to cross examine him as
to any reason why he might give the testimony incriminating the defendant. You have that right,' and later he also said:
'but we are not going to get into the details of any three cars.'
[8][9] The
action by the judge fully recognized the defendant's reasonable right to cross‑examine
Drew for the purpose of attempting to impeach him or discredit his
testimony. Commonwealth v. Underwood,
358 Mass. 506, 513, 265 N.E.2d 577 (1970).
It also reflected the correlative rule that 'the scope of cross‑examination,
including to what extent the accuracy, veracity, and credibility of a witness
may [368 Mass. 738] be tested, rests largely in the sound
discretion of the judge, not subject to revision unless prejudice is shown to a
party by reason of too narrow restriction or too great breadth of
inquiry.' Commonwealth v. Smith, 329
Mass. 477, 479, 109 n.E.2d 120, 122 (1952).
Commonwealth v. Makarewicz, 333 Mass. 575, 593, 132 N.E.2d 294 (1956).
(c) A
police officer of the town of Reading testified in substance as follows: (1)
that between June, 1970, and February, 1971, his hours of duty were between 4
P.M. and midnight, and that 'on numerous occasions' in that period he saw the
defendant's truck, operated by one Earl Beighley, the defendant's employee, at
the barn in which the police later found and removed the stolen merchandise,
and (2) that in October, 1970, he bought a 'mini‑Eight' tape deck at the
defendant's store from the defendant personally and that the tape deck 'came in
a cardboard box and on at least four different spots on the box (there was) a
cutting where markings had been cut out with a razorblade . . . like the
shipment where it came from or who it was going to. This box I think I took to the station.'
[10] At
this point the defendant moved that 'this entire testimony be stricken,'
stating no reason therefor. The motion
was denied and the defendant excepted.
The defendant argues before this court only that the admission of the
testimony about the box in which the tape recorder was contained was improperly
admitted. The motion was to strike 'this
entire testimony' and it was made after the officer had testified not only about the tape
recorder and box, but also about the defendant's truck and employee going to
the barn on numerous occasions. Since
there is no question that the testimony on the latter subject was properly
admitted, the judge properly denied the defendant's motion to strike the officer's
testimony in its entirety. 'The motion
to strike was too broad, for it included competent as well as (allegedly)
incompetent evidence.' Bryer v. P.S.
Thorsen Co. of Mass.,327 [368 Mass.
739] Mass. 684, 687, 100 N.E.2d 684,
686 (1951). Afienko v. Harvard Club of
Boston, ‑‑‑ Mass. ‑‑‑, ‑‑‑,
([FNA]) 312 N.E.2d 196 (1974).
[11]
However, even if the motion to strike had been limited to the testimony about
the tape deck and the box in which it came, the result would be the same. There was evidence by another witness that
about ninety‑five or ninety‑six per cent of the boxes found in the
barn on February 4, 1971, had the same appearance as the box containing the
tape deck purchased by the officer from the defendant in October, 1970. The testimony about the appearance of the
boxes in the barn was that 'it would appear . . . that someone took a knife or
a razor blade and just cut a fraction of the outside of the box, just enough to
do away with the writing or whatever was written on the box. The box was not completely cut through. Just the outside surface of the box was cut.'
[12] (d)
As noted above, there was evidence that the defendant's employee, Beighley, had
been at the barn on numerous occasions between June, 1970, and February,
1971. The court permitted the
prosecutor, in cross‑examination of Beighley, to show that Beighley had
made an appointment to meet with a police officer to discuss these cases on the
previous evening, and that when the officer met with him he refused to talk to
him. The judge instructed the jury that
Beighley was under no obligation the talk to any lawyers or to anybody. It also appeared in evidence that the witness
had been so advised by defendant's counsel.
We find no
merit in the defendant's attempt, in one page of his brief, to convert this
development into legal error or resulting prejudice.
4. Motions for Directed Verdicts. The defendant contends that the judge erred
in denying his motions for directed verdicts made at the end of the
Commonwealth's opening, at the close of the Commonwealth's case, and again
after both sides had rested.
[13] (a)
In a very recent case, Commonwealth v. Baker,‑‑‑ Mass. ‑‑‑,
‑‑‑, ([FNB]) 330 N.E.2d 794, 807 (1975), we said: 'As to a
motion (for [368 Mass. 740] a directed verdict) made after the
Commonwealth's opening, the law . . . is that 'a judge cannot be required to
direct a verdict on an opening.'
Commonwealth v. Hartford, 346 Mass. 482, 489, 194 N.E.2d 401
(1963). Commonwealth v. Binnette, 351
Mass. 704, 221 N.E.2d 926 (1966).
Commonwealth v. van Kooiman, 353 Mass. 759, 233 N.E.2d 206 (1967). Commonwealth v. Sloane, 361 Mass. 872, 281
N.E.2d 597 (1972). Commonwealth v.
Michel, ‑‑‑ Mass. ‑‑‑, ‑‑‑,
([FNC]) 327 N.E.2d 720 (1975). We
therefore do not deal with the alleged error in the denial of the motions for
directed verdicts after the Commonwealth's opening.' That language controls in these cases.
[14][15]
(b) The sole question raised by the motions for directed verdicts which were
filed at the close of the Commonwealth's evidence and again at the close of all
the evidence is whether, when the motions were filed, 'there was sufficient
evidence of the defendant's guilt to warrant the submission of the cases to a
jury.'
Commonwealth v.
Altenhaus,317 Mass. 270, 271, 57 N.E.2d 921, (1944). Commonwealth v. Baron, 356 Mass. 362, 365,
252 N.E.2d 220 (1969). For the purpose
of answering this basic question we must consider and determine whether the
evidence, in its light most favorable to the Commonwealth, notwithstanding the
contrary evidence presented by the defendant, is sufficient, as to each
indictment, to permit the jury to infer the existence of the essential elements
of the crime charged in that indictment.
[16]
Because the parties stipulated that the merchandise in question was in fact
stolen, and because of the direct evidence that the defendant had rented the
barn in which the merchandise was found and that his employee went there on a
number of occasions, the defendant's argument for directed verdicts
concentrated almost entirely on the claimed lack of evidence that he knew that
the merchandise had been stolen. As to
this element of the crime, the defendant may be convicted "if he either
knew or believed this property was stolen property at the time it came into his
possession, or at any time while it was in his possession he ascertained that
it was [368 Mass. 741] stolen property and he undertook to
deprive the owner of his rightful use of it." Commonwealth v. Kronick, 196 Mass. 286, 288,
82 N.E. 39, 40 (1907). Commonwealth v.
Peopcik, 251 Mass. 369, 371, 146 N.E. 661 (1925). Commonwealth v. Boris, 317 Mass. 309, 313, 58
N.E.2d 8 (1944). Commonwealth v.
Matheson, 328 Mass. 371, 373, 103 N.E.2d 714 (1952). Commissioner of Pub. Safety v. Treadway, ‑‑‑
Mass. ‑‑‑, ‑‑‑, ‑‑‑ ‑
‑‑‑ ([FND]) 330 N.E.2d 468 (1975).
[17][18]
The absence of direct evidence that the defendant knew that the merchandise
found in the barn rented by him from Drew had been stolen did not require the
judge to order the jury to return verdicts of not guilty. 'A man's intention or knowledge is a matter
of fact which ordinarily cannot be proved by direct evidence and resort
frequently must be had to proof by inference.'
Commonwealth v. Boris, supra, 317 Mass. at 315, 58 N.E.2d at 12. Without reciting further details of the
evidence, much of which has already been described above in this opinion, we
hold that the evidence was sufficient to permit a jury to find that as to each
indictment the defendant, on or about the date stated therein, 'did buy,
receive or aid in the concealment of . . . (the merchandise described therein,
which merchandise was) then lately before stolen, the . . . (defendant) well
knowing the said property to have been stolen.'
[19] We
have reached the conclusion above as to the sufficiency of the evidence without
resort to, or reliance on, the rule that '(p)ossession of recently stolen
property puts the burden of explanation upon one . . . charged with having
received property, knowing it to have been stolen.' Commonwealth v. Kelley, 333 Mass. 191, 193‑‑194,
129 N.E.2d 900, 902 (1955). This rule
has sometimes been said to create a permissible presumption, and at other times
to create a permissible inference, of knowledge that the property had been
stolen. For a discussion of the history
of the rule and a holding that the rule is constitutional, see Barnes v. United
States, 412 U.S. 837, 841‑‑847, 93 S.Ct. 2357, 37 L.Ed.2d 380
(1973). For a discussion of the Barnes
decision and of the general subject of presumptions, inferences, and prima
facie [368 Mass. 742] evidence in criminal trials, see
Commonwealth v. Pauley, ‑‑‑ Mass. ‑‑‑, ‑‑‑,
‑‑‑ ‑ ‑‑‑ ([FNE]), 331 N.E.2d
901. See also the following cases
involving the charge of larceny.
Commonwealth v. Torrealba, 316 Mass. 24, 29, 54 N.E.2d 939 (1944). Commonwealth v. Brant, 346 Mass. 202, 205,
190 N.E.2d 900 (1963). Commonwealth v.
Wilbur, 353 Mass. 376, 384‑‑385, 231 N.E.2d 919 (1967). Commonwealth v. Ryan, 355 Mass. 768, 773, 247 N.E.2d 564 (1969). Although the defendant testified at his
trial, he made no explanation of how he came into possession of the stolen
merchandise. Instead he denied that he
ever had possession of it.
The
defendant contends that the rule quoted above does not apply in these cases
because, in any event, the merchandise, although admittedly stolen, was not
'recently' stolen when he is charged with having bought or received it or with
having aided in its concealment. We deal
with this contention under the next part of this opinion.
5. Instructions to the Jury. The rule quoted above from the Kelley case to
the effect that 'possession of recently stolen property puts the burden of
explanation upon one . . . charged with having received property, knowing it to
have been stolen,' was handled in the following manner by the judge in the course
of his instructions to the jury. He
stated the rule to the jury in general terms, stressing the fact that the rule
applied only to the possession of 'recently stolen property.' He then divided the six indictments into two
groups of three. He pointed out that the
three lowest numbered indictments (92672, 92673, and 92674) involved
merchandise which by agreement had been stolen on dates which were between
thirteen and twenty‑one months before the dates on which he defendant was
charged with having received it. He
instructed the jury that 'as a matter of law that property cannot be considered
as recently stolen,' and that as to that property the jury 'may not consider
that there is any presumption that the defendant knew that the property was
stolen.' He then pointed [368 Mass. 743] out that the other three indictments (92675, 92676, and 92677)
involved merchandise which by agreement had been stolen on dates which were
between about two to eight months before the dates on which the defendant was
charged with having received it. As to
these three indictments he instructed the jury that 'it is a question of fact
for you to determine whether that was recently stolen property.'
The
defendant, understandably, does not claim error in the judge's treatment of the
first three indictments, and the Commonwealth cannot claim error. We therefore need not pass on the judge's
ruling in regard thereto. By this
abstention we do not intend any intimation that the ruling was not correct in
this particular case. However, we
suggest that this opinion not be considered as authority for the proposition
that all stolen property loses its 'recently stolen' status thirteen months
after its theft, or that it cannot lose that status before the expiration of
thirteen months.
The
defendant, however, does claim that the judge's different treatment of the
second group of three indictments was error.
He contends that as to those the judge should have made the same ruling
as he did with the first three‑‑that as matter of law the property
was not 'recently stolen.' We do not
agree. We do not, however, negate the
possibility that as to the property stolen two months earlier the judge might
properly have ruled that it had been 'recently stolen' as matter of law. Here again we suggest that this opinion not
be considered as authority for the proposition that all stolen property
continues to be 'recently stolen' for two months after its theft.
The
defendant erroneously argues in his brief that '(t)he court also ruled as a
matter of law that indictment numbers 92675, 92676 and 92677 must be treated as
recently stolen property and that the presumption of knowledge and the burden
of explanation shifted to the defendant, Max Sandler. It was error for the trial court to so
rule.' The trial court did not so
rule. It is error [368 Mass. 744] for the
defendant so to claim. On those three
indictments the judge submitted the question of fact to the jury to decide
whether the property was 'recently stolen.'
There are few judicial precedents in this
Commonwealth to help a judge or jury in deciding whether stolen property was
'recently stolen.' In Commonwealth v.
Kelley, 333 Mass. 191, 194, 129 N.E.2d 900, 902 (1955), we said: 'The defendant
makes the contention that the lapse of fifty‑four days between the
robbery and the date of the defendant's proved possession is enough to take the
case out of the rule. We cannot accept
an argument, which is, in substance, that this period of time is, as matter of
law, too long to permit the jury to draw an inference of guilty knowledge on
the part of the defendant.'
[20] It is
not appropriate to resort to judicial fiat to establish a uniform period of
time on the expiration of which stolen property ceases to be 'recently
stolen.' That decision must be made on
the basis of the facts and circumstances of each case, and it is a question of
fact for the fact finding tribunal, except in those cases where the theft was
so recent or so remote as to permit the judge to rule on the question as matter
of law. Some guidance in this regard is
obtainable by resort to Federal decisions involving periods of from four months
to fifteen months after the theft. Boehm
v. United States, 271 F. 454 (2d Cir. 1921).
Lee v. United States, 363 F.2d 469, 475 (8th Cir. 1966), cert. den. 385
U.S. 947, 87 S.Ct. 323, 17 L.Ed.2d 227 (1966).
United States v. Riso, 405 F.2d 134, 137‑‑138 (7th Cir.
1968), cert. den. 394 U.S. 959, 89 S.Ct. 1306, 22 L.Ed.2d 560 (1969). Altom v. United States, 454 F.2d 289, 294
(7th Cir. 1971), cert. den. 406 U.S. 917, 92 S.Ct. 1765, 32 L.Ed.2d 116
(1972). See also 50 Am.Jur.2d, Larceny,
s 162 (1970).
6. Conclusion.
In conclusion we hold that there was no error in any of the rulings of
the judge which the defendant alleged to be erroneous and argued in his
brief. The judgment is therefore
affirmed as to each of the six indictments involved in these cases.
So
ordered.
(FN1.)
The merchandise stolen, its value, and date of its theft are as follows:
Indict. No.
Description of Merchandise Value Date Stolen
‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑‑
92672 Welding rods $1,399.20 1‑16‑70
92673 2 Electric
Typewriters 800.00 5‑5‑69
92674 Clocks Over $100 1‑16‑70
92675 Men's work golves 1,677.00 7‑ ‑70
92676 Buttoneers Over $100 8‑ ‑70
92677 Miscellaneous
merchandise
of Top Value Enterprises,
Inc. Over $100
12‑4‑70
(FN2.)
The defendant's brief purports to argue two assignments of alleged error
(nos. 3 and 5) together. The brief
contains no references to the transcript pages where the allegedly erroneous
rulings were made, and thus fails to comply with S.J.C. Rule 1:15(2), 351 Mass.
739 (1967). As to assignment no. 3 we
found a transcript reference in the assignment of error; but as to assignment
no. 5 the transcript reference given in the assignment of error is apparently
incorrect and we do not assume the burden of searching the transcript for the
essential information.
(FN3.)
The defendant's counsel made the following statement: 'My entire defense
is that my client was framed by Mr. Drew.
That Mr. Drew was operating a stolen car ring during this period of
time. That when the police came down,
Mr. Drew at that time was a leading member of the community. He was caught in the position of having to
name somebody as renting the place or he would be arrested. He then said he rented it to my client, and
the police then proceeded with their investigation which led to my client's
indictment. I further state that at this
time he was operating a stolen car ring.'
(FNA.)
Mass.Adv.Sh. (1974) 783, 798.
(FNB.)
Mass.Adv.Sh. (1975) 1875, 1907.
(FNC.)
Mass.Adv.Sh. (1975) 1108, 1120.
(FND.)
Mass.Adv.Sh. (1975) 2023, 2029‑‑2031.
(FNE.)
Mass.Adv.Sh. (1975) 2224, 2229‑‑2243.