Commonwealth v. Clune , 162 Mass. 206 ( 1894 )

Allen, J.

The plea in abatement was not well founded. It was not necessary for the grand jury to examine the witnesses anew before finding the second indictment, and the fact that some of the grand jurors who found the original indictment were absent when the second indictment was found, and that others were present when the second indictment was found who were absent on the former occasion, did not render the indictment invalid. Commonwealth v. Woods, 10 Gray, 477. Commonwealth v. Woodward, 157 Mass. 516.

The court correctly stated the rule of law as to the grounds upon which the defendant could be convicted as principal. But the defendant contends that the evidence was insufficient to show that he was present aiding and abetting Malley in uttering the check. We have some difficulty in fixing the position of the parties during the transaction, partly because the testimony is not precise, and partly because the plan referred to in the bill of exceptions has not been laid before us. The testimony, however, tended to show that the defendant prepared the forged check or order, and delivered it to Malley on the street, asking the latter to get a messenger boy to take it to the bank and to get the same cashed; that Malley walked up the street till he found a boy, and then down the street till he was nearly opposite the bank, when Malley sent the boy for the money; that it was obtained, and Malley received it from the boy, went into a drug store and got a bill changed, and paid the boy twenty-five cents, and when he came out of the drug store the defendant was coming across the street to where Malley was, and asked him if he had got the money, and received it from him, less the twenty-five cents. From this it might be inferred that the defendant, though not seen by the boy or by Malley, nevertheless may have kept them both in sight, and have remained near enough to be of aid to Malley in receiving the money promptly from him, or otherwise, as occasion might require. The case was properly submitted to,the jury to determine, upon the evidence, whether the defendant was in a situation where he might actually aid Malley. Commonwealth v. Lucas, 2 Allen, 170. Commonwealth v. Wallace, 108 Mass. 12. Commonwealth v. Knapp, 9 Pick. 496, 517, 518. 1 Bish. Crim. Law, (8th ed.) § 653.

There was no legal error in refusing to instruct the jury that it would not be safe to convict upon the testimony of an accomplice, unless corroborated in a material point, or that such testimony should be scrutinized with great care and caution. Commonwealth v. Wilson, 152 Mass. 12. It is also to be observed that Malley was thus corroborated by the boy.

There is no rule of law that, if a witness has sworn falsely in one particular, it is unsafe for the jury to rely on any part of his testimony, or upon any uncorroborated statement by him; and the judge was right in refusing so to instruct the jury. The credibility of witnesses is for the jury; and if the defendant was entitled to have any comments made by the court upon Malley’s testimony, the observations which were made were judicious, and were all that the defendant was entitled to.

Exceptions overruled.