COMMONWEALTH vs. ANTHONY C. BARRASSO.

WILLIAMS, J. The defendant was found guilty on an indictment charging him with stealing on November 5, 1959, money "of the amount and of the value in all of six thousand

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dollars, of the property of one John Judson Phillips." He was sentenced for a term of from three to five years in the Massachusetts Correctional Institution at Walpole; the sentence was suspended and he was placed on probation. The case is here on his exceptions to the denial of a motion for the direction of a verdict of not guilty, to a ruling on evidence, and to the denial of his motion for a new trial.

There was evidence that Phillips was a musician employed in Washington, D. C. He first met the defendant through a mutual friend who informed him that the defendant had experience in the night club business. On November 4, 1959, Phillips and the defendant discussed the possibilities of entering into a business arrangement and the leasing of a night club in Boston known as the "Chantilly Lounge." The defendant told Phillips that he and two others had been negotiating for the lease of the lounge and that Phillips "may be substituted" in place of one of the others. On that evening Phillips went with the defendant and another person to the lounge and Phillips was introduced to one Murphy, the proprietor. On the next day, Thursday, November 5, the defendant informed Philips over the telephone that the third party had been eliminated and asked him to send him, the defendant, a check for $6,000. He said that "the lease had not been signed but the deal was in the final stages and that the deposit had to be put up on Friday, that Phillips had to get the money to him right away, and that the lease would be signed when the deposit was made." In reliance on these statements Phillips sent the defendant a check for $6,000.

Phillips returned to Washington on November 6 and received a telephone call from the defendant telling him that the Chantilly deal had fallen through at the last minute; that he had some "other deals on the fire and that he would like to keep the $6,000." Phillips told him "that if he were to keep the money, he would have to put it in an escrow account in my name and get a receipt and that I would want some kind of a telegram as a receipt for it." The defendant sent him a telegram "Am holding money as authorized

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by you to be used at discretion to negotiate for liquor license or night club." On November 10 Phillips met the defendant in Boston. The defendant showed him an escrow receipt for $5,000 and said he had made a $1,000 deposit on the "Celebrity Lounge" in Lowell. The same evening Phillips visited the Celebrity Lounge with the defendant, met a man who claimed to be the proprietor, and thinking that "The whole situation seemed very unhealthy . . . decided it was time to get my money back." The defendant said he would return the money but that it was "too late in the evening and that they would talk about it in the morning." On November 11 Phillips tried to reach the escrow man, who was the attorney of the defendant, and learned that he was away and would not be back until Monday, November 16. Phillips told the defendant that he had to return to Washington and agreed to take a promissory note for the money, payable on November 17, "the day after . . . [the escrow man] returned." The "idea of the note originated with" the defendant. A note was drawn by an attorney for $5,900 to allow $100 for the fees of the escrow man. It was arranged that the defendant was to pick up the money on the sixteenth and that he would mail it to Phillips on the seventeenth, the date on which the note was payable. Phillips received no part of the money.

The note given to Phillips by the defendant, dated November 12, 1959, recited, "It is expressly understood that acceptance of this note by John Judson Philips releases the said Barrasso from and renders null and void, any, and all agreements, contracts, promises, oral or written, between Anthony G. Barrasso and John Judson Philips from the beginning of time to the present."

Murphy, the proprietor of the Chantilly Lounge, testified that although he had conversations with the defendant regarding the leasing of the lounge, "he never had any concrete deal and had no financial arrangements with him." In their talks he, Murphy, was referring to a part of the lounge and the defendant the whole lounge and "because of this discrepancy the deal was off."

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There was no error in denying the motion for a directed verdict of not guilty. The larceny of which the defendant was convicted was that of obtaining money by false pretences. G. L. c. 266, Section 30. To constitute this offence the Commonwealth must prove that the defendant made a false statement known or believed by him to be false with the intent that the person to whom it was made should rely upon its truth and that this person did rely upon it as true and as a result of his reliance parted with personal property. Commonwealth v. Green, 326 Mass. 344, 348, and cases cited. Commonwealth v. King, 202 Mass. 379, 393.

The jury could find that the defendant misrepresented to Phillips the state of the negotiations with Murphy; that the deal was not in the final stages; and that no deposit was required by Friday. They could find that these statements were made to induce Phillips to turn over to the defendant $6,000. It could not be ruled that the transaction was intended by either party to be merely a loan. See Commonwealth v. Anthony, 306 Mass. 470, 475; Commonwealth v. Leland, 311 Mass. 447, 452-453; Commonwealth v. Althause, 207 Mass. 32, 48. The evidence as to the subsequent intercourse of the defendant with Phillips, if believed, tended strongly to show a scheme by the defendant to defraud Phillips.

During the course of the trial Phillips was asked by the assistant district attorney, subject to the defendant's exception, "At the time that the defendant gave you the promissory note that is now in evidence, was there anything said at that time between you and the defendant with regard to borrowing or lending any money?" After colloquy of court and counsel the witness answered "Not strictly a loan." "I was letting the defendant keep the money until the escrow man's return. In that sense it was a loan. It was not a loan in the sense that I meant to let him use the money for any negotiations beyond that date." The question was properly admitted. No exception was taken to the answer.

The defendant filed a motion for a new trial on the

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grounds that the verdict was against the evidence and the weight of the evidence; that the assistant district attorney during the trial committed an act that tended to prejudice the jury against the defendant; and that the court also committed a prejudicial act. At the hearing on the motion the defendant presented nine requests for rulings, all of which as well as the motion for a new trial were denied.

The only matter relied upon by the defendant which might not have been the subject of an exception at the trial (see Commonwealth v. Dascalakis, 246 Mass. 12, 24-25) was that relating to the alleged prejudicial act of the assistant district attorney. One Palauskas testified that he was in the court room during the entire trial and saw in the hands of the assistant district attorney, while examining Phillips, a photograph showing the front and side view of the defendant's face, such as commonly is to be found in the police records of a criminal, and that he held the photograph in a manner that would be within the vision of the jury. In arguing the motion the assistant district attorney said "we have evidence that at all times I held the picture at the end of the jury box, that at no time did I come from the end of the jury box toward the middle of the jury box, that if the picture was seen by any members of the jury it could have been seen only by those jurymen at the end of the box."

The defendant requested the following rulings in reference to this incident: "5. That by the admission of the district attorney (assistant) that as he was examining the government witness, he held before the jury and within its full view a picture of the defendant of both the front and the side view, he was committing an act which was prejudicial to the right of the defendant to have the jury consider him innocent until he be proven guilty." "6. That the act of the assistant district attorney in committing something which created or could have created any prejudice in the minds of the jury was prejudicial to the defendant during the trial and was not in the interest of justice to the defendant."

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While the statement of the assistant district attorney seems impliedly to concede that he held the picture in his hand while examining the witness it does not amount to an admission of the facts on which request 5 was predicated. Both requests 5 and 6 were based upon assumptions of fact which the judge may not have found. "[W]here a request assumes a disputed fact, instead of stating it hypothetically, the party presenting the request goes beyond his right to a ruling of law, and asks also an implied finding of fact which the judge is not required to make." Liberatore v. Framingham, 315 Mass. 538, 543. There was no error in denying requests 5 and 6.

During the trial the judge was in a position to observe whether the picture was in fact held by the assistant district attorney in such manner that it was brought to the attention of the jury. It cannot be said that he was wrong in refusing to allow the motion for a new trial.

Exceptions overruled.