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09/30/77 COMMONWEALTH v. CHARLES J. KILEY

September 30, 1977

COMMONWEALTH
v.
CHARLES J. KILEY, JR.



Suffolk. Indictments found and returned in the Superior Court on December 12, 1973. The cases were heard by McGuire, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Liacos, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Directed verdict, Double jeopardy, Duplicitous convictions. Bank, Misapplication by bank officer. Constitutional Law, Double jeopardy. Evidence, Business record.

The opinion of the court was delivered by: Hennessey

At the trial of indictments under G. L. c. 266, § 53A, evidence that the defendant, who had been president of a bank, intentionally contrived to have another individual sign for loans being made for the benefit of the defendant, that he knew that the collateral provided by the borrowers was nonexistent and not owned by them, that certain securities pledged by the borrowers as collateral security were never received by the bank, that the defendant caused certain persons to be recorded as borrowers when he himself was the beneficiary of the loans, and that he knowingly caused to be made entries as to nonexistent collateral warranted findings that the defendant had wilfully misapplied the bank's funds, that he knew at the time of each loan that the borrower's assets were less than the borrower's liabilities, that he had received and accepted, as security for loans, fictitious, valueless, inadequate and irresponsible obligations, and that he knowingly made and caused to be made false statements in the bank's books. [456-461]

Separate indictments charging four distinct violations of c. 266, § 53A, arising from one transaction did not violate principles of double jeopardy where each offense charged required proof of distinctive and additional facts. [461-462]

At a criminal trial, the Judge did not err in admitting in evidence under the provisions of G. L. c. 233, § 78, the factual entries on certain documents prepared by an independent firm of auditors where the records were sufficiently qualified by an appropriate witness. [462]

At a criminal trial, there was no error in the denial of a motion to dismiss each indictment on the ground that testimony given by an attorney before the grand jury concerned matters that were confidential and protected by the attorney-client privilege where evidence warranted a finding that no attorney-client relationship existed. [462]

After a trial before a Superior Court Judge without jury, the defendant was found guilty on twelve indictments, and on all of the ninety-three counts contained therein, charging violations of G. L. c. 266, § 53A. All charges concerned twelve loans from the Brighton Five Cents Savings Bank (Brighton Five) to Merlin R. Fisher, Jr. (Fisher), six loans to Cirt Research, Inc. (Cirt), of which Fisher was president, and six loans to Octal Realty Inc. (Octal), of which Fisher was president. All loans were alleged to have occurred from on or about October 10, 1969, to on or about July 16, 1971. During all this time the defendant was president of the Brighton Five.

The violations charged were three indictments for wilful misapplication of bank funds in connection with the loans to Fisher, Cirt, and Octal; three indictments for knowingly receiving and accepting fictitious, valueless, inadequate and irresponsible obligations from Fisher, Cirt, and Octal; three indictments for loaning the funds and credits of the Brighton Five to Fisher, Cirt, and Octal when the defendant knew each to have insufficient assets; and three indictments for knowingly making and causing to be made false entries on the bank's books, reports, and statements in connection with the loans to Fisher, Cirt, and Octal. *fn1

The defendant was found guilty on all indictments and counts and received a sentence of five years to the Massachusetts Correctional Institution at Concord on each count of the indictments, the sentences to be served concurrently. His appeal is here under G. L. c. 278, §§ 33A-33G. We conclude that there was no error.

1. Trial of the action consumed more than four weeks, and generated hundreds of transcribed pages of testimony. Most of the testimony concerned the details of the twenty-four loans which were the subject matter of the indictments.

The defendant argues that the evidence did not warrant findings of guilty on the ninety-three counts, and that it was error for the Judge to deny the defendant's motions addressed to the insufficiency of the evidence. We disagree. The evidence was sufficient as to all indictments and all counts. As to this issue, we consider only the evidence heard by the Judge up to the time the Commonwealth rested its case in chief. See Commonwealth v. Kelley, 370 Mass. 147, 149-150 (1976).

In 1968, the defendant worked in Binghamton, New York. Fisher, whom the defendant had known since 1956 and with whom he had a social relationship, worked in a position subordinate to the defendant. In the fall of 1968, the defendant's brother Edward became president of the Brighton Five, his father having been ...


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