355 Mass. 799

April 25, 1969

Gilday by a petition for a writ of error seeks to reverse his 1964 conviction for armed robbery because of the admission in evidence to affect his credibility (G. L. c. 233, Section 21) of records of three prior convictions in which he was not represented by counsel. These were a 1951 Ohio conviction for breaking and entering and larceny in the nighttime for which he was placed on probation; a 1953 conviction in Minnesota for carrying concealed weapons for which he received a jail sentence of thirty days; and a 1954 Massachusetts conviction for assault and battery for which he was placed on probation. Objection was made only to the Ohio and Minnesota records. No ground of objection was specified. On direct appeal (G. L. c. 278, Sections 33A-33G) we affirmed. Commonwealth v. Bowlen, 351 Mass. 655, 659, cert. den. sub nom. Gilday v. Massachusetts, 389 U.S. 916, reh. den. 389 U.S. 1010. These decisions foreclose all but constitutional issues. After our decision, Burgett v. Texas, 389 U.S. 109, was decided. The single justice who heard this petition for a writ of error found that Gilday had no counsel and was impecunious at the time of each conviction. Although we are not in agreement as to the implications of the Burnett case for the present issues, we conclude in any event that the use of the not very serious records now attacked was "harmless beyond a reasonable doubt" (see Chapman v. California, 386 U.S. 18, 24). There was strong evidence of guilt and there were admitted without objection two serious Massachusetts felony records for which concurrent sentences (the longer, ten to twelve years) were imposed. Further, the Ohio record, the only felony record now attacked, recited that Gilday appeared "with his counsel." The single justice found that Gilday, then in the military service, was accompanied in court by an Air Force major. The disposition indicates effective representation. In view of the existing uncertainty concerning the Burgtt case, no record of prior conviction henceforth should be offered to impeach credibility unless the witness thus attacked can be shown to have had or waived counsel in the proceedings certified by the record.

Judgment affirmed.


355 Mass. 799

April 30, 1969

The jury returned verdicts against the defendants Finnerty, husband and wife, who were, respectively, president and clerk of Tri-State Corporation, the lessee of laundry equipment from the plaintiff. The action was in contract on a guaranty signed by the Finnertys in December, 1962, contemporaneously with the execution of the lease. There was no error in the denial of Mildred Finnerty's motion for a directed verdict, in the rulings on evidence or in the denial of the motions for a new trial. The subsidiary findings of the auditor were mutually consistent and supported the ultimate findings for the plaintiff. The report alone was sufficient to take the case to the jury. Cook v. Farm Serv. Stores, Inc. 301 Mass. 564, 566. The judge ruled that the place of Mildred Finnerty's signature on the guaranty made it ambiguous. He properly excluded on direct examination her offered testimony to show her intent "a couple of days" before the signing and her physical condition on the day of the signing. See Commonwealth v. Trefethen, 157 Mass. 180, 184-187.

Page 800

Neither offer was pertinent to her actual intent at the time of the signing. He correctly permitted her to testify that when she signed she had an intent and that her intent was to "sign for the corporation." Davis v. H. S. & M. W. Snyder, Inc. 248 Mass. 387, 392. There was no exception to the charge. There was no abuse of discretion in denying the motions for a new trial.

Exceptions overruled.


[Note 1] Mildred Finnerty.