Commonwealth v. Glover

111 Mass. 395

Opinion

Ames, J.

The motion to quash rests mainly upon the mistaken assumption that the indictment contains two counts, and was intended for the prosecution of the accessory with the principal. It really contains but a single count, in which the perpetration of a crime, by some unknown person or persons is recited, perhaps with more formality than was absolutely necessary, and then the participation of the defendant in the crime, as accessory before the fact, is properly charged. The use of the “ contra formam clause,” as it is called, in which the act described in the recital is declared to be against the peace, &c., does not convert that recital into a separate count.

The indictment, after alleging that the crime was committed by “ some person or persons” to the jurors unknown, goes on to charge that the defendant did feloniously, &c., incite and procure “ said person and persons,” to the jurors unknown, to commit the crime. But we see no objection to this mode of presenting the case, either for variance or on any other ground. The substance of the charge is that the defendant advised and procured the perpetration of the crime. It is questionable whether this charge could have been properly set forth in the alternative or disjunctive form, namely, that he advised the person, or persons, engaged in it. The form adopted is equivalent to saying that whoever may have been engaged in it acted under his procurement. Under the Gen. Sts. 168, § 4,

Footnotes

•

* there can be no doubt that such procurement is a substantive felony, for which one might be indicted with the principal felon, or after his conviction; or separately as for a substantive offence, and whether the principal had or had not been convicted, or was or was not amenable to justice. Commonwealth v. Smith, 11 Allen, 257, 259.

The question whether the grand jury did or did not know the names of the persons by whom the breaking and entering were alleged to have been committed was submitted to the jury with proper instructions. The inquiry is, not what the grand jury could or ought to have known, but what they did know. In the absence of all evidence on the subject, their averment that they did not know might be sufficient; but if it should be a question in relation to which there was evidence, the burden of proof would be upon the Commonwealth. Commonwealth v. Stoddard, 9 Allen, 280. Commonwealth v. Sherman, 13 Allen, 248.

The question whether the witness, Pratt, was an accomplice or not was properly submitted to the jury. If the court had ruled as a matter of law that he was an accomplice, the ruling would have included the assumption of the defendant’s guilt, inasmuch as the only evidence of participation in the crime was a participation directly and immediately with the defendant. For that reason the question, whether he was an accomplice or not, was substantially identical with the question as to the guilt of the defendant. This was clearly for the jury, and not for the .court. Any ruling by the court to the effect that his testimony required corroboration, must have been hypothetical. Commonwealth v. Ford, ante, 394. We must assume, as there is no other exception on this point, that the jury were advised that it is not safe to convict upon the uncorroborated testimony of an accomplice. Whether the witness stood in the position of an accomplice depended upon the tendency of his testimony to connect him with the offence of which he testified. This proposition was substantially included in the instructions given. Enough was said to call the attention of the jury to the position of the witness, and to the effect which his own account of his connection with the transac tian ought to have upon his credit.

The court was requested to rule that, unless the jury should find that the “ principal felony ” was committed in the night-time, the defendant could not be convicted. The effect of such a ruling, without qualification or explanation, must have been to lead the jury to suppose that' they could not find him guilty, except upon proof that the final consummation of the crime, including the actual larceny charged in the indictment, occurred in the nighttime. But we do not hold that the prosecution was to be confined to such narrow limits. If in the operation of making a practicable opening through the wall, any one of the persons engaged in it had in the night-time passed through into the building, or thrust his hand or arm through, for the purpose of removing bricks, plaster7 ing or rubbish of any kind, in order to enlarge the opening, or to make it more safe or convenient for use, it would be a breaking and entering in the night-time within the meaning of the indictment. Rex v. Bailey, Russ. & Ry. 341. Rex v. Davis, Ib. 499. 2 East P. C. 487. It has been decided that the breaking and entering need not be shown to have occurred on the same night. Thus in Rex v. Smith, Russ. & Ry. 417, where the breaking occurred on Friday night, and the entry before sunrise on Monday morning, and both in pursuance of the same design, and separated only by what Mr. Justice Park called “ the natural accidents of the transaction itself,” the indictment was sustained. See also 1 Gabbett Grim. Law, 176; 1 Hale P. C. 551. It is well settled that it is a sufficient entry “ when the thief breaketh the house, and his body, or any part thereof, as his foot or his arm, is within any part of the house.” 3 Inst. 64. 1 Hale P. C. 551. 2 East P. C. 490. In Gibbons’s Case, Fost. C. L. 107,.reaching in the hand through a broken pane in order to unfasten a window, was held sufficient. In this latter case, the immediate purpose of reaching in the hand was merely to open a passage, in order to have access to the goods which the thief intended to steal. It would have been none the less a burglarious entry, if the purpose of the thief had been to wait for hours, or even until the dawn of day, before he should venture on the next step of actually opening the window, and climbing through it into the house.

The instructions given at the trial were intended to enforce this distinction. The court was dealing with a case in which the breaking was not only literal, but must have required much time and labor for its completion. The language used by the judge was this, “ If the brick walls of the building occupied by the Boylston National Bank were in the night-time broken, and any entry made into the walls so broken,” &c. The proper interpretation of this language is, “ If the walls were broken through; ” and the “ entry made into the walls so broken ” can only mean an entry through, and not merely into the body or substance of the wall itself. The question suggested was as to the time, and not as to the nature of the breaking and entering. To prevent the jury from confining their attention to the actual robbery, as if the incidents immediately connected with that final event constituted the specific and only felony charged, he explains to them in substance that if, at any time before that event, and in the course of the general purpose, anything amounting to an entry on the part of any person engaged in it occurred in the night-time, it was sufficient for the purposes of the indictment; that it was immaterial that part of the work was done in the day-time; and also that it would make no difference in the character and legal identity of the crime, even though the final operation of forcing open the vault and stealing its contents was postponed till daylight. In order to hold the defendant responsible as an accessory before the fact, it is not necessary to prove that he knew or supposed that it was to be committed in the night. If he procured or incited the commission of the offence, he cannot escape responsibility by leaving the time, place and manner of its execution to his associates. Fost. C. L. 369. Exceptions overruled.

“ Whoever counsels, hires, or otherwise procures, a felony to he committed, may he indicted and convicted as an accessory before the fact, either with the principal felon, or after his conviction ; or may be indicted and convicted of a substantive felony, whether the principal felon has or has not been convicted, or is or is not amenable to /ustice ; and in the last mentioned case may be punished in the same manner as if convicted of being an accessory beforó the fact.”