Commonwealth v. Conlin

74 N.E. 351, 188 Mass. 282, 1905 Mass. LEXIS 1151

• Court: Massachusetts Supreme Judicial Court
• Decided: May 20, 1905
• Status: Published

Opinion

Lathrop, J.

The statute under which the defendants were indicted, R. L. c. 208, § 41, had its origin in the St. of 1853, c. 194, and has been in force ever since. Gen. Sts. c. 161, § 34. Pub. Sts. c. 203, § 36. Since it was enacted but two cases under it have been before this court, Commonwealth v. Tivnon, 8 Gray, 375, and Commonwealth v. Day, 138 Mass. 186. The first ease decided, among other points, that the offence could be committed in concert by two or more persons ; that it was not necessary to prove-either that the defendants were possessed of all the implements described, or that all of them were designed or adapted to effect the objects charged in the indictment; that it was not necessary that it should appear that the tools or implements were originally made or intended for an unlawful use, it being enough that they were suitable for the purpose; and that the possession might be actual or constructive. Mr. Justice Bigelow then goes on to define constructive possession, as follows: “It would be proved by evidence that the implements were held by one for himself and as agent for another; that they were jointly bought and owned, but kept by one only, or procured and held by one by mutual agreement or at the request of another; or that they were deposited in some place mutually agreed on, to which either could resort at pleasure.” There is another point decided in the case, to which we shall refer later.

The case of Commonwealth v. Day, 138 Mass. 186, has but slight application to the case before us.

The defendants'filed numerous requests for instructions, none of which was given in terms, although some of them were covered by the charge, which dealt with the case fully and adequately.

The first three requests for instructions amount to a request that there was no sufficient evidence to warrant a verdict of guilty against either defendant. The defendants rely upon a point decided in Commonwealth v. Tivnon, supra, that proof of possession of burglarious implements by one person, he and another intending to use them in a joint undertaking, is not sufficient to show the possession of both. The jury were so instructed in the case before us. The jury also were instructed that if the defendants were merely messengers to obtain the bag they could not be found guilty. On the evidence in the case we are of opinion that the jury might have found that both defendants, had constructive possession of the bag, and that it was in their control before it was interfered with by the police officers. There was evidence that the defendants had been in the house that day with Wright, who hired the room where the bag containing the implements was found, and went out with him. The key of the bag was found in Oonlin’s possession. The defendants came after the bag. Nelson was seen going out of the house a short time before he returned with Conlin for the bag.The defendants gave a false account of the whereabouts of Wright, and disclaimed all knowledge of the bag and its contents. When they were asked what they used the revolvers and fuses for they made no answer. When they were asked what they used the rubber bag for, Nelson “got back as quick as that,” and made no answer. This bag was shown afterwards to contain nitroglycerine; and Nelson’s action showed that he was well aware of what was in the bag.

The jury might well have found that the defendants were the owners of the bag and its contents, and employed Wright to hire the room and put the bag there, where it was subject to their control.

The other requests for instructions, so far as relied upon in the defendants’ brief, are sufficiently covered by the charge.

Exceptions overruled.