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04/19/78 COMMONWEALTH v. GEORGE O. EDGERLY

April 19, 1978

COMMONWEALTH
v.
GEORGE O. EDGERLY



Middlesex. Indictment found and returned in the Superior Court on February 20, 1975. The case was tried before Chmielinski, J.

Hale, C.j., Grant, & Armstrong, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Voir dire, Comment by prosecutor, Attendance of witnesses, Argument by counsel, New trial, Disqualification of Judge, Comment by Judge. Evidence, Other offense, Cross-examination. Larceny. False Pretenses.

The opinion of the court was delivered by: Hale

At a criminal trial the Judge did not abuse his discretion in holding a voir dire to determine whether a prosecution witness who had been granted immunity pursuant to G. L. c. 233, §§ 20C-20I, had been threatened and intimidated by the prosecutor. [248]

There was no merit to the defendant's contention that the Judge improperly limited the testimony of a witness in the presence of the jury by consistently excluding matters which had been brought forth during a voir dire, where the Judge excluded only hearsay statements and cumulative or redundant testimony. [248]

At a criminal trial the Judge did not usurp the function of the jury by stating that as a "matter of fact" certain remarks by the prosecutor to a witness did not constitute unlawful intimidation where it appeared that the Judge instructed the jury as a matter of law and where he did not withdraw from the jury the issue of the witness's bias and credibility. [248-249]

At the trial of an indictment charging the defendant with larceny from the General Motors Corporation by submitting false warranty claims, testimony by a witness that he and the defendant had been drinking in Lowell with a field representative from General Motors, that the three then drove to an undisclosed location in Danvers where all three got out of the automobile, and that only the witness and the defendant returned to Lowell, did not improperly inform the jury that the field representative had been murdered and that the defendant had been indicted for the murder. [249-251]

At the trial of a defendant arrested in 1975 for larceny from the General Motors Corporation by submitting false claims for warranty repairs, testimony that the defendant had been arrested in 1974 for another crime did not prejudice the defendant by permitting the jury to conclude that the arrest was tied in with the murder of a General Motors field representative, where the question regarding the crime for which the defendant had been arrested in 1974 was excluded and where there was no mention of murder before the jury. [251]

At the trial of an indictment charging larceny from the General Motors Corporation by submitting false claims for warranty repairs, evidence regarding an alleged larceny by the same means from the manufacturer of Toyota automobiles was relevant to the defendant's intent to steal from General Motors, where the defendant was the director of service of a dual dealership selling Chevrolet and Toyota automobiles from the same premises and his earnings came in part from a percentage of the warranty claims credited to the dealership by Toyota. [251-252]

Although the Judge at a larceny trial should have allowed the defendant to cross-examine a witness on the basis of an allegedly contradictory statement she had made at a deposition in a related civil action, in which an order had been entered impounding the transcript of the deposition, his failure to do so did not constitute reversible error in the circumstances. [253-254]

At a larceny trial, the Judge did not abuse his discretion in denying a motion to require the attendance of out-of-State witnesses made on the day the jury were to be empanelled and renewed after three weeks of trial, where the defendant made no showing that the testimony of the witnesses he sought to summon would be material to his case. [254-256]

At the trial of a larceny indictment, a single error in the Judge's comments during defense counsel's closing argument was not harmful where it was apparent that the Judge was acting as a neutral moderator in ruling on the prosecution's numerous objections to defense counsel's argument and where the Judge reminded the jury of their duty to decide the case on the evidence and not to allow extraneous factors to interfere with their verdict. [256-258]

Although the remarks of the prosecutor at a larceny trial during his closing argument were not confined throughout to the permissible bounds of proper argument, they were not so prejudicial as to justify reversal when viewed in the overall context of the trial, including the strong curative instructions given by the Judge. [258-260]

At the trial of an indictment charging larceny from the General Motors Corporation by false pretenses, the Judge did not err in refusing to give an instruction requested by the defendant that if an agent of General Motors had apparent authority to bind his principal and the defendant believed that he did, evidence of such authority could be considered probative of the defendant's state of mind and lack of criminal intent. [260-261]

At the trial of an indictment charging larceny by false pretenses, the Judge did not substitute a lower standard of reliance than that required by instructing the jury that it must be proved that the person to whom false representations were made "did, in fact, rely to some extent on the truth of the representations," where he added that the victim's parting with his property must come "as a result of" his reliance. [261-264]

The mere fact that during a larceny trial the Judge had written a letter to the Board of Bar Overseers reporting the conduct of defense counsel in attempting to use certain impounded depositions did not require the Judge to disqualify himself from imposing sentence on the defendant. [264]

There was no reversible error at a larceny trial in a reference by the Judge to "some appellate procedure" made in the course of a Discussion carried on in the presence of the jury but not directed to them. [264-265]

There was no merit to the defendant's contention that at the trial of a larceny indictment the Judge improperly attributed delay to the defendant when he suspended a session telling the jury that this would allow defense counsel time to inspect a large number of documents in the custody of the prosecutor. [265-266]

The defendant was tried before a sequestered jury on an indictment charging larceny by false pretenses of more than one hundred dollars from the Chevrolet Motor Division of the General Motors Corporation (G.M.). He was found guilty and sentenced. The trial was subject to G. L. c. 278, ยงยง 33A-33G. Initially we shall relate briefly facts which could have been found by the jury, and we shall then ...


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