Commonwealth v. O'Brien

Braley, J.

The defendant having been acquitted on the indictment for forgery, his exceptions are confined to the indictment for conspiracy, on which he was found guilty. The indictment charged that the defendant and George A. Hastings and Robert O. Sears conspired together to steal the property, moneys, goods and chattels of George C. Lee, who could be found by the jury to have been a member of the banking firm of Lee, Higginson and Company, doing business in Boston, but only the defendant and Hastings were tried as Sears had not been arrested.

The defendant offered no evidence and the case was submitted to the jury on the testimony introduced by the Commonwealth. If the jury accepted this testimony as true, they could find that a clerk of the company, employed as a seller of bonds, in response to a letter dated June 14, 1924, addressed to the firm, bearing on the letterhead the words, “Hotel Vendóme,” and purporting to be signed by Sears “per W. L. G.,” had an interview with Sears, who after *89 further negotiations gave an order for the purchase of certain bonds, the price of which as finally fixed was $34,742.38. When Sears came to the office to receive and pay for the bonds, he stated that, his money being on deposit in a bank in Worcester, he would have to arrange for a draft: Sears telephoned to Worcester, using the firm telephone, and then said to the clerk, that his friend would get the draft, and either he or his friend would bring in the draft and pay for the bonds in the afternoon. Sears left, but later telephoned that his friend had arrived with the draft, and that because of other engagements, while he could not come himself, he would send some one with the draft, to whom the bonds were to be delivered. Very shortly after this message had been received, Hastings came for the bonds and brought a draft seemingly signed by “S. A. Ellsworth, Vice President,” and drawn on the Mechanics National Bank of Worcester, payable to the order of Lee, Higginson and Company for $34,742.38. The draft was forged, and the bonds were never delivered. There also was found in the defendant Hastings’s pocket a letter to the Hotel Vendóme, apparently signed by Sears, with a “draft for twenty dollars in payment of my account due to date.”

It is clear there was proof of a criminal conspiracy by Sears and Hastings to obtain the bonds by using the forged draft. Commonwealth v. Dyer, 243 Mass. 472, 483 . While there was no direct evidence implicating the defendant, the remaining question is whether there was any circumstantial evidence on which it could be found that he was a participant. Attorney General v. Tufts, 239 Mass. 458 .

It was in evidence that when Hastings left the office of Lee, Higginson and Company on the day he presented the draft, the defendant was seen waiting a short distance from the office, and that, after Hastings and the defendant met, they turned into an intersecting street and walked up and down for some time. The jury also, if they believed the evidence of Towle, a police inspector, could find, that the defendant had written him a letter, to the admission of which as a standard of comparison the defendant excepted. It was admitted rightly in the first instance by the presiding *90 judge as the genuine handwriting of the defendant, and it could be used by the handwriting expert called by the Commonwealth as a standard, the whole question being finally left to the jury under full instructions to which no exceptions were taken. Commonwealth v. Coe, 115 Mass. 481, 504 . The credibility of this witness was for the jury, who on his evidence could determine whether the hand which wrote the letter was the same hand that wrote the draft. The jury also, if they were satisfied the letter was in the defendant’s handwriting, could make the comparison for themselves. Levi v. Rubin, 241 Mass. 40 .

It follows, that the requests for a directed verdict, and that there was no evidence that the defendant conspired with the other defendants, and that there was not sufficient evidence to warrant an ordinarily reasonable and prudent man in deciding that the defendant was guilty, and that the verdict must be not guilty, could not have been given. The exceptions to the denial of the defendant’s motion for a new trial, not having been argued, are treated as waived.

Exceptions overruled.