Commonwealth v. Anderson

139 N.E. 436, 245 Mass. 177, 1923 Mass. LEXIS 1024

• Court: Massachusetts Supreme Judicial Court
• Decided: May 23, 1923
• Status: Published

Opinion

Carroll, J.

The defendant was indicted for having in his possession burglar’s tools “ adapted and designed for cutting through, forcing and breaking open buildings, rooms, vaults, safes and other depositories, in order to steal therefrom such money and other property as might be found therein, . . . knowing said machines, tools and implements to be adapted and designed for the purpose aforesaid, and intending to use and employ them therefor.”

There was evidence that between two and three o’clock on the morning of February 17, 1921, the defendant with three men were in an automobile in West Newton, owned and driven by one Boylan. At the request of a police officer, Boylan drove to police headquarters. While Boylan and an officer were within the police station and the automobile was standing in front of it, the defendant tried to jump from the automobile and attempted to place a nickel-plated revolver between the cushion and the rear seat. Two sticks of dynamite, two bottles of nitro-glycerine, a quantity of wire, fuses, detonators, gloves, punches, drills, chisels, a bit-stock, hammer, pocket knife, padlock, bunch of keys, two thumb screws, and a number of pistol cartridges were found in the automobile. The defendant was found guilty and the case is before us on the defendant’s exceptions.

1. There was no error in overruling the defendant’s motion to quash the indictment. It was correctly drawn according to the form prescribed in G. L. c. 277, § 79; the statute provides that the forms annexed shall be sufficient in cases to which they are applicable.

The defendant’s motion for a statement of particulars was denied properly. G. L. c. 277, § 40, enacts that the court may order the prosecution to file a statement of such particulars as may be necessary to give the defendant and the court reasonable knowledge of the nature and grounds of the crime charged; and at the request of the defendant shall so order, if it cannot otherwise be fully, plainly, substantially and formally stated. The charge against the defendant was fully, plainly, substantially and formally set out in the indictment, and he was given reasonable notice of the nature and grounds thereof. He could not of right demand further specifications. Commonwealth v. King, 202 Mass. 379. Commonwealth v. Wood, 4 Gray, 11.

There was no error in denying the defendant’s motion to direct a verdict of not guilty. The defendant was found with three men in an automobile, at half past two o’clock in the morning. He attempted to jump from the machine. In the automobile were found the various instruments capable of use for committing the crime of burglary. The offence charged was the possession with knowledge, of burglarious implements with the intent to use them for such purpose. The intent to use them to commit the crime of burglary was a question of fact for the jury, and there was evidence from which the jury could find that the defendant was guilty. Commonwealth v. Johnson, 199 Mass. 55. Commonwealth v. Conlin, 188 Mass. 282. Commonwealth v. Day, 138 Mass. 186.

2. Walter L. Wedger, who had been connected with the State police for twelve years as an expert on explosives, had an experience of thirty-eight years as a chemist, and had made many examinations of tools used in connection with dynamite and explosives, was permitted to testify as an expert to the adaptability of the tools and implements in question for cutting through and breaking open buildings and other depositories. The witness was shown to be qualified; there was no error in the admission of his testimony. See Commonwealth v. Johnson, 199 Mass. 55.

3. The last named witness was examined at length by the district attorney and by the defendant’s counsel as to his qualifications as an expert. In reply to a question of the trial judge if the defendant objected to the qualification of the witness, counsel for the defendant said “ For one ground yes. I have not heard of his having cut open a safe.” He was asked on cross-examination if he had experience in the use of the tools in question in manual labor, and he replied that they were in use in general machine work. He was then asked if he had ever seen them used for any other purpose, and he replied in the negative. This question was put to him: “ Have you ever used or seen used any such tools as are here for any other purpose than carpenter work or building up some machinery? ” The trial judge then said, “ You mean, has he ever been a burglar? ” To this the defendant excepted and the witness answered, “ I have never seen tools of these kinds used for any other purpose than carpenter work or wood work or for metal work.” In view of the nature of the cross-examination of the witness, the attempt to show that his experience was limited to the use of such tools in general machine work and that they were not adapted for committing the crime of burglary, the defendant cannot complain of this question put by the presiding judge. Partelow v. Newton & Boston Street Railway, 196 Mass. 24. The defendant’s counsel subsequently cross-examined the witness as to the uses of these-tools and his experience with reference to them; the witness testified that they were adapted and designed for breaking into buildings and vaults. In our opinion there was no error of law in this question of the judge, and the defendant was not harmed by it.

4. The statements made by the defendant to Inspector Goode were admissible. Commonwealth v. Dascalakis, 243 Mass. 519. Commonwealth v. Spiropoulos, 208 Mass. 71. Commonwealth v. Storti, 177 Mass. 339. There was no error in admitting the evidence and the motion to strike out his testimony was overruled properly. See Commonwealth v. Robinson, 165 Mass. 426, 428. The exclusion of the answer to the question put to this witness on cross-examination which tended to show that nothing said to him by the defendant was untrue, was within the discretion of the judge and no error is shown in his ruling. There was no error of law in excluding the evidence as to the non-production of the Boston police officers as witnesses for the Commonwealth, nor in excluding the evidence with reference to the complaint against Boylan. The defendant was not harmed by the ruling regarding the offer of proof. He was told that he could make the offer when putting in his case and the defendant’s counsel then said, “ Very well at the close of the evidence I will make an offer of proof.”

5. In the closing argument the defendant’s counsel, in speaking of the legal presumption of innocence in the defendant’s favor, proceeded to repeat the rule as stated by a former judge of the Superior Court, giving his name. Counsel was interrupted by the trial judge stating that it was improper for him to state in argument what some other judge had said, “ and refused to allow him to continue his argument with respect to the rule which counsel claimed to have been stated ” by the former judge. The extent to which books may be read to a jury is within the discretion of the court: Commonwealth v. Austin, 7 Gray, 51; and in the orderly progress of a trial the trial judge in its discretion may prohibit quotations or alleged quotations from the statements of other judges. There was no error in the direction of the court, especially when counsel was permitted to proceed, with a statement of his views of the law on the question of reasonable doubt and concerning the presumption of innocence.

6. The defendant’s knowledge that the tools were adapted for the uses claimed by the Commonwealth, and that they were in his possession, were questions of fact for the jury. See Commonwealth v. Johnson, supra.

7. In so far as the tenth request correctly stated the law, it was given in substance by the judge. There was no error in refusing t]ae seventeenth request in its exact words. The jury were instructed that they must be satisfied beyond a reasonable doubt that the instruments were in the possession of the defendant to use them to break open, as stated in the indictment. There was no error in that part of the charge, where it was said in effect, “ A chisel or a stone bit, though a tool in common use . . . has been stated by the Supreme Court to be as efficacious in the hands of a burglar to carry out his felonious intent as a jimmy or lock picker,” taken in connection with the charge as a whole. See Commonwealth v. Tivnon, 8 Gray, 375, 381.

8. The defendant was taken to the police station. He was searched and five loaded 38-calibre cartridges were found in his trousers’ pocket. A police sergeant, a witness for the Commonwealth, was asked if at this time he had any conversation with the defendant, and replied that he did. The witness was then asked what was said, and answered: “ I asked him why he had the gun and he made me no answer.” The defendant moved that this answer be stricken out. The motion was denied and the defendant excepted. The defendant was at the time on trial upon the indictment charging him with having burglarious instruments in his possession, and upon another indictment for carrying a pistol without authority. The silence of the defendant, while under arrest, to questions asked, is not admissible against him. He has the right to remain mute if he so desires, and if he is prejudiced by the testimony, it should be stricken out. “ If a defendant while under arrest is charged with the crime by an accusation made in his presence and hearing, and he remains mute or unequivocally denies it, his silence or denial is not admissible in evidence against him. But if he makes an equivocal reply, the question or statement by which it was elicited and the answer or comment are admissible.” Commonwealth v. Spiropoulos, supra. Commonwealth v. Gangi, 243 Mass. 341.

“ The defendant Malone, while held in custody, had a right to keep silence as to the crime with which he was charged, and all circumstances connected with it, and was not called upon to reply to or contradict any statements made in his hearing. No inference against him was;,warranted by his failure to deny the truth of what McDermott said to the officer.” Commonwealth v. McDermott, 123 Mass. 440. Commonwealth v. Kenney, 12 Met. 235. See Rex v. Christie, [1914] A. C. 545. This evidence was inadmissible and the defendant’s motion to strike it out should have been allowed. We think the evidence was prejudicial to the defendant. He was on trial at the same time on a charge of carrying a pistol, but this fact is not enough to show that the defendant was not harmed by the admission of this evidence on the indictment for having burglar’s tools in his possession. The fact that the defendant made no reply when asked “ why he had the gun,” might have had an effect on the minds of the jury and might seriously prejudice the fairness of his trial. This exception must be sustained.

9. The defendant asked the court to instruct the jury:

“ 7. The defendant is presumed to be innocent. This presumption is with the defendant at the outset of the trial and continues with him through all its stages, unless and until evidence is introduced proving his guilt beyond reasonable doubt.

“ 8. Suspicion is not evidence; and if all the evidence only raises a strong suspicion of guilt, the defendant must be acquitted.

“ 9. The defendant is of right entitled to the benefit of every reasonable doubt. Every presumption of honesty, uprightness, good character, and lawful conduct must be taken to be in the defendant’s favor.”

The defendant excepted to the refusal to give these instructions.

The jury were fully instructed that the burden of proof was upon the Commonwealth to prove the charge beyond a reasonable doubt; that unless they were satisfied beyond a reasonable doubt, it was their duty to return a verdict of not guilty. They were told that it was “ not sufficient for the government, if it merely raises a suspicion that the defendant is guilty; ” that no presumption arose against the defendant because he failed to testify; that the fact that an indictment has been found against him was not to be considered as evidence of guilt or to be given any consideration by the jury; that he was to be tried on the evidence presented in this court. They were instructed that “ Proof beyond reasonable doubt means that if upon a full consideration of all the evidence in the case with such inferences as the jury may properly draw from the evidence, the jury feels so certain that the charge has been proved and that the charge is true that they would not hesitate to act upon that conviction of certainty in matters of importance in their own private affairs if they were called upon to make such a decision, then the jury would be warranted in considering that the case had been proved beyond a reasonable doubt.” And further, that it was a part of the Commonwealth’s case to satisfy them beyond a reasonable doubt that the articles referred to in the indictment were adapted to the purposes stated in the indictment; and that the burden was upon the Commonwealth to satisfy them beyond a reasonable doubt that the possession of the articles by the defendant was with the intent to use them for the purpose of “ breaking open ” as stated in the indictment. Notwithstanding what was said in the charge in reference to the burden of proof and the rights of the defendant, in our opinion there was error in refusing to instruct the jury that the defendant is presumed to be innocent.

In Commonwealth v. Kimball, 24 Pick. 366, the defendant asked for the instruction, page 368, “ that the burden of proof is on the government to make out their whole case, and that when a prima facie case is made out, it then becomes incumbent on the defendant only to create a reasonable doubt thereof.” But the court instructed them “ that when the government have made out a prima facie case, it is then incumbent on the defendant to restore himself to that presumption of innocence in which he was at the commencement of the trial.” At page 374 Chief Justice Shaw said, “ The court are of opinion that the jury should have been instructed, that the burden of proof was upon the Commonwealth, to prove the guilt of the defendant; that he was to be presumed innocent, unless the whole evidence in the case satisfied them that he was guilty.” The presumption of innocence is referred to in Commonwealth v.Williams, 6 Gray, 1, 4. In Commonwealth v. Webster, 5 Cush. 295, Chief Justice Shaw, at page 320, in his frequently quoted charge to the jury, said: “ All the presumptions of law independent of evidence are in favor of innocence; and every person is presumed to be innocent until he is proved guilty.” In view of these decisions and the settled rule in this Commonwealth, there was error in omitting all reference to the presumption of innocence. The first sentence of the seventh request was sound law and it was error to refuse to, give this instruction.

The defendant was entitled to have the request “ The defendant is presumed to’ be innocent ” given to the jury and this exception must be sustained.

Exceptions sustained.