COMMONWEALTH vs. ANGELO ZAKAS & another. [Note 1]

KIRK, J. The defendants Zakas and Carney were indicted for conspiracy to steal property of Teremo, Inc., of the value of more than $100, and were found guilty at a trial subject to G. L. c. 278, Sections 33A-33G, inclusive. Both appealed. Only Zakas, however, has perfected and prosecuted his appeal.

Zakas assigns two errors: (1) A juror who sat on the convicting jury had earlier during the same sitting served on a jury which by a directed verdict found Zakas not guilty of larceny by means of false pretences of property of Teremo, Inc. (2) The denial of Zakas's motion for a directed verdict of not guilty on the conspiracy charge.

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1. There was no reversible error in the first assignment. It is not disputed that Zakas represented by the same counsel had been put to trial earlier in the sitting of the Superior Court as the sole defendant on a complaint charging him with larceny by means of false pretences. [Note 2] When the conspiracy indictment was called the judge and counsel explicitly agreed that the jury would be drawn from the same venire as had the jury for the larceny trial of Zakas. [Note 3]

After the jury had been declared indifferent, one juror following a bench conference was excused by the judge. Carney declared himself content and Zakas challenged one juror on the panel. The replacement jurors were declared indifferent; none was challenged; the jury were sworn; the indictment was read and the Commonwealth's opening began. The judge interrupted the opening and advised counsel that one of the jurors (not a replacement) had sat on the earlier Zakas trial. Carney stated that he was not a party to the earlier trial and would object to any juror being excused. Zakas said he objected to the juror remaining on the panel. The colloquy with the judge was beyond the hearing of the jurors. The judge ordered the trial to proceed. Zakas excepted. The exception is without merit.

No one contends that Zakas, by consenting to draw the jury from the entire venire, became bound to accept as a juror one who had sat on his earlier trial. We hold, however, that he was bound to use reasonable diligence to ensure that he had an impartial jury, exercising, if he so desired, the right to exclude members of the earlier jury by peremptory challenges or challenges for cause. Rule 48 of the Superior Court (1954). Indeed, Zakas had exercised a peremptory challenge. He had not exhausted his peremptory

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challenges when he declared that he was content with the jury. Zakas had the means and ample opportunity to ascertain whether a juror had been on the earlier panel and to determine if for that reason the juror was objectionable. His failure seasonably to object was a waiver of his right to object. Zakas's late objection came only after the codefendant Carney stated his opposition to excusing any sitting juror, and was a reversal of Zakas's earlier position, possibly designed to pose a dilemma for the judge. In a situation quite similar to the one before us, it was held that the right to challenge a particular juror is conclusively waived if no objection is made at the time the jury are empanelled and if the basis of the objection is known or might have been known or discovered by reasonable diligence, or if the party is otherwise chargeable with knowledge of the ground of the objection. Batsell v. United States, 217 F. 2d 257, 260 (8th Cir.), generally recognized as a leading case on the point. Leonard v. United States, 378 U.S. 544, relied upon by Zakas, is distinguishable. In the Leonard case, the prior trial proceeded to a verdict of guilty by a jury, one of whom sat on the subsequent trial of the defendant and joined in another guilty verdict. See cases collected in 6 A. L. R. 3d 551.

2. The evidence was sufficient to support verdicts of guilty of the crime charged in the indictment. The indictment was in the form provided by statute. G. L. c. 277, Section 79. The indictment did not state, and there is no requirement that it state, the means to be used to effect the larceny. There was no motion for a bill of particulars. In the final sentence of his opening statement, however, the assistant district attorney stated that the evidence would show that the defendants conspired to steal the money "by reason of false pretenses."

This statement did not enlarge the indictment or add an element to it. The statement merely informed the jury that the Commonwealth, in support of the indictment charging conspiracy to steal, would produce evidence that the defendants planned to accomplish the theft by a false pretence.

The essence or gist of the alleged offence is that Zakas

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and Carney agreed or conspired together to steal money by their combined action. It is not essential, as Zakas contends, that on a conspiracy charge the Commonwealth prove that the defendants accomplished all four of the essential elements of the crime of larceny by false pretences as is the case when the substantive crime is charged. See Commonwealth v. Leonard, 352 Mass. 636, 644-645.

It is sufficient if it be shown to the satisfaction of the jury that the defendants combined with the intention to steal. Proof of their intention may be shown by circumstantial evidence. Commonwealth v. Schnackenberg, 356 Mass. 65, 73-74. The means resorted to by the defendants may be strong evidence of the larcenous intent.

We summarize the evidence. In June, 1969, Teremo, Inc. of Beverly (Teremo) a health and social club, applied to the liquor licensing board of Beverly for a license. The clerk of Teremo was John Morgan. During the week following the application Morgan had conversations with the defendant Zakas's sister about the purchase of furniture for the club. Zakas's sister mentioned the application for a liquor license. As a result of these conversations Morgan telephoned to Zakas at his place of business on Monday, June 23. Zakas invited Morgan to come to his office alone. Zakas was in the real estate business and employed Carney, the codefendant, as a salesman on a commission basis. Carney was president of the board of aldermen of Beverly. As such he had no position on the Beverly licensing board and had no power to vote for or against the granting of a liquor license in the city. When Morgan arrived at Zakas's office shortly after noon on the twenty-third of June, Carney was there and the three men remained together in the small office during the conversation which followed.

In response to a question about how the application was progressing, Morgan said he would not know until after the hearing. Zakas asked Morgan what he wanted him to do about it. Morgan said that he did not know what Zakas meant. Carney then telephoned the city clerk and conversed with him. At the conclusion of the telephone conversation

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Carney told Morgan that there was opposition to the application, that there were only two licenses available and that the hearing was set for the following Monday. Carney told Morgan that it would probably cost $3,000 to get the license. Morgan said that his people did not have that kind of money. Carney replied that maybe it would only cost $1,000. Zakas commented that the people they would contact could prevent them from getting the license as well as get it for them. Zakas added that he wanted some free memberships in the club for himself and others, including Carney.

During each of the three days following their initial meeting, Morgan called Zakas but learned that nothing more had been done about the license. On the fourth day, Friday, at the behest of Carney and Zakas, Morgan met Zakas alone and was told by Zakas that he and Carney "were out the night before with the people that they had wanted to talk to and that it cost him about $35. or $40. wining and dining, everything was all set. It would cost us $2,500 for the license." When Morgan said they did not have the money, Zakas offered to lend Morgan the money for two or three weeks, and to then arrange a loan at a credit bureau in Peabody if Morgan did not have the money. Zakas also said the money would have to be paid before the hearing on the following Monday.

Subsequent to the Friday meeting, Morgan contacted two other officers of Teremo, the chairman of the licensing board and the State police. A plan was then formulated to raise $800, record the serial numbers of the bills, put the money into an envelope, and have Morgan meet Zakas at the club on Sunday.

Morgan told Zakas that he would have $800 for him the next day at the club and the balance before the meeting on Monday. He asked that Carney be with him but was told that Carney did not wish to be seen at the club before the license was issued.

On Sunday morning, Zakas went to the club, counted the money in the envelope and assured Morgan that he was

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ninety-nine per cent certain that the license would be obtained. Zakas remonstrated with Morgan for having put the names Zakas and Carney on the envelope and said he would cut them out himself. At the same time, Zakas asked for and received ten membership cards in the club. The customary charge was then $125 for a family membership, $75 for a male individual, and $40 for a female. Zakas then left. Morgan followed him to the porch and by signal indicated to State Police Detective James E. Leary, who was waiting outside, that Zakas had the money. [Note 4] Leary then arrested Zakas. When the envelope with the $800 was taken from Zakas he explained it as repayment of a loan he had made to Morgan and said he had been carrying it around for one or two days. However, it had been in Detective Leary's hands at 9 A.M. that same day. After being informed that Detective Leary could give him the serial numbers of the bills in the envelope and after being asked who Carney was, Zakas said no more.

No extended discussion is necessary to point out that a jury could find from the foregoing evidence that Zakas participated with Carney in a scheme to steal money by impliedly and falsely representing that they had the power to obtain a liquor license.

Judgment affirmed.