Home GERTRUDE MARTHA MILO vs. JOHN SALVATORE MILO.

3 Mass. App. Ct. 732

April 7, 1975

Our study of the statutory report of material facts leads us to the conclusion that the amounts which the libellee was ordered to pay the libellant for alimony and for the maintenance of the minor child were influenced to a considerable extent by the judge's finding that the libellant still had in her possession or under her control some $10,000 in cash, representing a portion of the proceeds of the sale of the marital home. Although that finding was warranted by some of the testimony of the libellant, we are of the opinion that it was plainly wrong, particularly when considered in the light of (1) the testimony of the libellee concerning the portion of the sale proceeds which was turned over to the libellant and (2) other testimony of the libellant concerning the purchase of her present home. As we are in no position to determine the degree of weight which the judge attached to the erroneous finding, so much of the decree of January 16, 1974, as makes provision for alimony and for the maintenance of the minor child is reversed. Those phases of the case are to be tried anew and redetermined in the light of the present circumstances of the parties. Compare Hillery v. Hillery, 342 Mass. 371 , 374-375 (1961). See G. L. c. 208, Section 34, as appearing in St. 1974, c. 565.

So ordered.

Home COMMONWEALTH vs. JACK SEGAL.

3 Mass. App. Ct. 732

April 8, 1975

The defendant, a licensed pawnbroker, has invoked appellate review pursuant to G. L. c. 278, Section 31, of his conviction on three indictments for receiving stolen property. All three indictments were tried together, jury waived. The defendant's claim that there was not sufficient credible evidence to sustain a conviction is without merit. The admitted thief, one Gregory Johnson, testified that he sold the items to the defendant. He also testified to certain conversations between himself and the defendant from which it could have been inferred that the defendant knew the items were stolen, including the defendant's advising Johnson where to get more merchandise and instructing him to sign different names and addresses on the required signature cards. Even if we were to accept the defendant's argument that a thief and a receiver of stolen property bear a relationship to each other essentially equivalent to that of accomplice and principal (see Commonwealth v. Savory, 10 Cush. 535 , 537 [1852]; Commonwealth v. Fine, 321 Mass. 299 , 302-303 [1947]; but see People v. Lima, 25 Cal. 2d 573, 576-577 [1944]); and even if it were true that the testimony of Johnson was the only evidence of the defendant's knowledge that the property was stolen; and even if this were a case (as the defendant claims) in which the testimony of the thief was completely uncorroborated, we would still be faced with the rule that a principal can be convicted on the uncorroborated testimony of an accomplice. Commonwealth v. French, 357 Mass. 356 , 396 (1970), judgments vacated as to death penalty, sub nom. Limone v. Massachusetts, 408 U.S. 936 (1972). Commonwealth v. Dominico, 1 Mass. App. Ct. 693 , 720 (1974). Contrast Commonwealth v. DeBrosky, 363 Mass. 718 , 727-730 (1973). In this case the credibility of Johnson was for the determination of the judge, as the trier of fact, and he was

Page 733

free to credit some portions of that testimony and discredit others. See Commonwealth v. Davis, 284 Mass. 41 , 51 (1933); Commonwealth v. Holiday, 349 Mass. 126 , 129 (1965). Evidence regarding previous dealings or of a course of dealing in stolen merchandise between the thief and the defendant was properly admitted, not for the purpose of proving commission of other crimes, but for the purpose of showing knowledge and intent on the part of the defendant with respect to the stolen items he was charged with receiving. Smeltzer v. State, 243 Ind. 437, 438-439 (1962). Martin v. Commonwealth, 276 S.W. 2d 19, 20-21 (Ky. 1955). Wilkerson v. State, 265 P. 2d 739, 744 (Okla. Crim. 1954). Lanier v. State, 172 Texas Crim. App. 238, 239-240 (1962). Wigmore, Evidence, Sections 324-325 (3d ed. 1940). See also Commonwealth v. Abbott Engr. Inc. 351 Mass. 568 , 572-573 (1967); Commonwealth v. Deschamps, 1 Mass. App. Ct. 1 , 2-4 (1972); United States v. Brand, 79 F. 2d 605, 606 (2d Cir. 1935), cert. den. 296 U.S. 655 (1936). The defendant also excepted to another evidentiary ruling of the judge. Assuming the matter admitted lacked relevance, its admission was harmless. See Commonwealth v. Libby, 358 Mass. 617 , 620-621 (1971); Odsen v. Commonwealth, 361 Mass. 890 (1972).

Exceptions overruled.