Opinion
November 16, 1908.
March 29, 1909.
Present: KNOWLTON, C.J., MORTON, HAMMOND, BRALEY, RUGG, JJ.
Punctuation. Practice, Criminal, Variance. Attorney at Law, Falsely representing one's self to be attorney at law.
Punctuation is not conclusive in determining the meaning of writings, but at most is only an aid in their construction.
A criminal complaint charged that the defendant, without having been admitted to practise as an attorney at law, represented himself by means of a certain letterhead to be an attorney and counsellor at law and lawfully qualified to practise in the courts of this Commonwealth, and, after the words, "which said letterhead is of the tenor following, that is to say:" set out a copy of a letter-head which contained, besides a recital of the defendant's business as "Law, collections and adjustments. Claims collected by suit or demand everywhere. Special attention given to accident claims and all other causes for civil damages," and of various legal positions held by him, the defendant's name on one line, on the second and third lines the words "late first assistant attorney in the office of," on the fourth and fifth lines the words "The Hon. Judge Harvey D. Hadlock" followed by a comma, and on the next lines the words "Attorney and Counsellor at Law, Boston, U.S.A." At the trial it was admitted by the defendant that he had not been admitted to practise in this Commonwealth. The Commonwealth proved that the defendant had used in his business a letter-head identical with the one set out in the complaint, except that there was no comma after the word "Hadlock" in the fourth line. The presiding judge refused to direct a verdict for the defendant on that ground. Held, that there was no error in the ruling, since it was competent for the jury to find that the defendant intended to and did represent himself in the letter-head which was in evidence to be an attorney and counsellor at law lawfully qualified to practise in this Commonwealth, and since the fact that, in the letter-head introduced in evidence, there was no comma after the word "Hadlock" did not constitute a material variance.
COMPLAINT, received and sworn to in the Municipal Court of the City of Boston on March 21, 1908, alleging that the defendant, "not having been admitted to practise as an attorney and counsellor at law in accordance with" R.L.c. 165, "did, by means of a certain letter-head, represent himself to be an attorney and counsellor at law, and lawfully qualified to practise in the courts of said Commonwealth; which said letter-head is of the tenor following, that is to say: elect
"Law, Collections Formerly Attorney Adjustments. General- of the Principality of Trinidad, Claims Collected by South America, Under Suit or Demand G. Osborne-Grant, LL. B., Baron Harden-Hickey, the Everywhere. Special Late First Assistant Founder of the Attention Given to Attorney in the Office of Principality. Accident Claims and The Hon. Judge Harvey Legal Counsel in the all Other Causes for D. Hadlock, United States for the Civil Damages. Guianese Junta. Cable Address: "Guiana, — Boston" A Lawyer Retained in Attorney and Counsellor { Watkin's Code. every City and Town in at Law, { A.B.C. Code 4th the United States and Boston, U.S.A. { 5th Edition. Canada to Prosecute Codes: { Lieber's Code. and Adjust Claims in { Western Union and out of Court. { Code. { A1 Code. Telephone Connection." The bill of exceptions states: "The evidence introduced in behalf of the Government was as follows: A letter-head used in his business correspondence by the defendant, identical with the letter-head set forth in the complaint, excepting the omission of a comma after the surname Hadlock. It was admitted by the defendant that he was not an attorney at law duly qualified to practise in the Commonwealth of Massachusetts. The defendant introduced no evidence in his behalf, but pleaded not guilty."At the close of the evidence, the defendant asked the presiding judge to direct a verdict for the defendant, assigning the following reasons therefor: (1) that the Commonwealth had not produced sufficient evidence to support the offense charged in the complaint as a matter of law; (2) that there was a variance between the alleged letter-head set forth in the complaint and the letter-head in evidence, in that there was a comma inserted after the word or name "Hadlock" in the complaint which did not appear in the letter-head in evidence, and that the defendant was prejudiced thereby; (3) that the Commonwealth had not shown in evidence a letter-head in which the defendant held himself out as an attorney at law qualified to practise in the courts of the Commonwealth.
The presiding judge refused to rule as requested and, in the language of the bill of exceptions, "after proper instructions by the court to the jury, the evidence was given to the jury." The jury returned a verdict of guilty; and the defendant alleged exceptions.
J.C. Hadlock, for the defendant.
F.W. McGettrick, Assistant District Attorney, for the Commonwealth, submitted a brief.
This was a complaint charging that the defendant did by means of a certain letter-head represent himself to be an attorney and counsellor at law and lawfully qualified to practise in the courts of this Commonwealth, he not having been admitted to practise as an attorney and counsellor at law in accordance with the provisions of R.L.c. 165. The defendant was found guilty at the trial in the Superior Court, to which he had appealed from the finding against him in the Municipal Court, where the complaint was brought, and the case is here on exceptions by the defendant to the refusal of the presiding judge to give certain rulings that were asked for. No fault is found with the instructions in other respects, and they are spoken of in the bill of exceptions as "proper," except in regard to the matters complained of.
The complaint is brought under R.L.c. 165, § 45. At the trial the defendant admitted "that he was not an attorney at law duly qualified to practise in the Commonwealth of Massachusetts." The Commonwealth introduced evidence tending to show the use by the defendant in his business correspondence of a letter-head identical with that set forth in the complaint except that the letter-head in the complaint had a comma after the surname Hadlock, and that introduced in evidence had no such comma. The defendant contended that this constituted a variance and asked the judge so to rule, which the judge refused to do. The contention of the defendant is that without the comma the words "attorney and counsellor at law" which follow the name "Harvey D. Hadlock" would naturally refer to that and not to the defendant's name which is at the top. If the presence or absence of a comma at the place indicated would conclusively determine the construction of that part of the letter-head, and show that in one case the words "attorney and counsellor at law" referred to the defendant and in the other to Harvey D. Hadlock, then the instruction requested was correct and should have been given. But no such conclusive effect can be given to the presence or absence of the comma. "Punctuation," as was said in Ewing v. Burnet, 11 Pet. 41, 54, "is a most fallible standard by which to interpret a writing." It may be disregarded entirely, or it may be resorted to as an aid in construction. Commonwealth v. Kelley, 177 Mass. 221. It is at most only an aid in construction. In the present case, taking the letter-head as a whole, it was competent for the jury to find that the defendant intended to and did represent himself thereby to be an attorney and counsellor at law lawfully qualified to practise in the courts of this Commonwealth, and that the words "Attorney and Counsellor at Law, Boston, U.S.A.," referred to himself and not to Harvey D. Hadlock, who was described as "The Hon. Judge Harvey D. Hadlock," and to whom the words "attorney and counsellor at law" might therefore have seemed to be inapplicable. The jury were warranted in finding that the whole scope and purpose of the letter-head was to advertise that as a counsellor and attorney at law the defendant was doing a law and collection business, and that, by reason of his experience, and past and present connections, he possessed especial qualifications and advantages for attending to the same.
It follows from what we have said that the instructions requested were rightly refused.
Exceptions overruled.