335 Mass. 106 (1956), Commonwealth v. Locke

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation138 N.E.2d 359,335 Mass. 106
Docket Number.
Date04 December 1956

Page 106

335 Mass. 106 (1956)

138 N.E.2d 359



Allen G. LOCKE.

Supreme Judicial Court of Massachusetts, Suffolk.

December 4, 1956

Argued Oct. 1, 1956.

[138 N.E.2d 361] John J. Sullivan, Asst. Dist. Atty., Boston, for Commonwealth.

George A. McDonough, Joseph M. McDonough, Boston, for defendant.


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SPALDING, Justice.

The jury could have found these facts. About 11 o'clock in the morning of July 16, 1954, one Annie Gavin, a storekeeper, went to the branch office of the National Shawmut Bank on West Broadway in South Boston and withdrew $860 in bills and a $10 roll of quarters. She put the money in a black handbag, twisted the strap of the bag around her wrist, and left the bank to walk to her store at the corner of Dorchester and West Second streets, also in South Boston. She had proceeded along Dorchester Street to a point where she was about to cross Bolton Street when a man (not the defendant) grabbed her bag and tore it from the strap. He then ran with it to an automobile that was parked on the corner of Dorchester and Bolton [138 N.E.2d 362] streets. The automobile was on Bolton Street facing away from Dorchester Street. The robber got into the automobile, which contained two other men whom the victim could not identify, and it proceeded down Bolton Street toward F Street which runs parallel to Dorchester Street. The victim ran to her store and reported the robbery by telephone to the police.

Shortly after 11 o'clock two automobiles collided at the intersection of Bolton and F streets. One of the automobiles was a gray Chevrolet sedan bearing a Massachusetts registration plate with the number P-64728; it was facing out of Bolton Street and away from Dorchester Street. When the police arrived at the scene of the accident

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they were unable to find the operator of this automobile. The registration plate which was attached to it had been issued to one Buckley and had been stolen from him prior to the time of the robbery.

One Stephen McNeil testified that shortly after the collision while walking on E Street toward Bolton Street his attention was attracted to three men running down Bolton Street from the scene of the accident; that one of these men (not the defendant) had a lady's black bag in his hand; that one of the others was the defendant; and that the three men entered an Oldsmobile sedan which was parked on E Street, and drove north toward Second Street. The automobile had a Michigan license plate (EA-89-00) and it was registered in the name of the defendant.

The defendant's automobile was observed by the police at 11:21 a. m. on Albany Street proceeding over the Broadway bridge from the direction of South Boston; it was stopped by the police, and the defendant, who was alone, was placed under arrest.

When questioned at the police station, the defendant was informed that his room at 260 Beacon Street, Boston, was going to be searched. He told the police that they would find $350 in the pocket of a sweater in his room. The police made the search and found the $350 and they also found in a drawer the sum of $275 in bills and a $10 roll of quarters. 1 The quarters were in a wrapper of a type used by the Federal Reserve Bank.

The distance from the scene of the robbery to the defendant's lodgings on Beacon Street is about two and one half to three miles. Under ordinary traffic conditions it would take twenty minutes to drive that distance via the Broadway bridge. The Commonwealth conceded at the arguments that the defendant would not have had time to drive from the scene to his room prior to his arrest.

The defendant was tried to a jury on an indictment

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charging robbery and was convicted. The case, having been tried subject to G.L. (Ter.Ed.) c. 278, §§ 33A-33G, as amended, comes here by appeal with numerous assignments of error.

1. The defendant's second assignment of error presents the question whether the defendant was prejudiced by the action of the judge in ordering the case for trial in the circumstances hereinafter stated. The defendant was arrested on July 16, 1954, and Mr. Lehane was retained as counsel shortly thereafter. The indictment was returned on July 29, 1954, and on August 3, 1954, the defendant was arraigned and pleaded not guilty. When the case was called for trial on September 28, 1955, the defendant through his counsel, Mr. Lehane, moved for a continuance on a ground which is not here material and the motion was denied. 2 At that time the judge announced that the trial would commence on [138 N.E.2d 363] the following morning (September 29) at 10 o'clock. On the next day (Thursday) when the case was called for trial Mr. Lehane informed the judge that he had been discharged as counsel. The judge then asked the defendant if he had any other counsel in mind and the defendant replied that he would like to get in touch with Mr. Joseph McDonough. Thereupon, at the request of the judge, Mr. McDonough was sent for and upon his arrival in the court room he was appointed to represent the defendant. The judge at the same time appointed Mr. Lehane as associate counsel. The judge said to Mr. McDonough that he assumed that he would want a continuance in order to prepare the case, and Mr. McDonough replied that he would. The judge then stated that he would set the case down for trial on Monday morning. Mr. McDonough informed the court that that would not be convenient as he had an assignment for that day in the Federal Court. A protracted colloquy followed in which both counsel, the defendant and the judge participated, which may be summarized as follows: The judge stated to Mr. Lehane that he

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understood the defence had no witnesses and Mr. Lehane stated that that was the fact. Mr. McDonough stated that he would like to have the case proceed on the following day so that he could attend to his assignment in the Federal Court. The defendant himself stated that he objected to having the case go forward so speedily. The judge then ordered a jury to be empanelled and the trial was assigned for the following day. To this ruling Mr. McDonough excepted.

We are mindful that 'A reasonable opportunity to obtain counsel * * * and to prepare a defence is of the very substance of due process of law.' Jones v. Commonwealth, 331 Mass. 169, 171, 117 N.E.2d 820, 822. But taking into consideration the facts that counsel who had been in the case for more than a year had been appointed associate counsel, that the defence did not propose to call witnesses, and that Mr. McDonough preferred to have the case go forward on Friday in preference to Monday, the judge did not err in ordering the case on for trial. Subject to the constitutional right just alluded to, which we think was not impaired here, the granting of a continuance is discretionary with the judge. Commonwealth v. Klangos, 326 Mass. 690, 96 N.E.2d 176.

2. The defendant argues that the judge erred in denying his motion for a directed verdict of not guilty (assignment 46); but we are of opinion that the case was rightly submitted to the jury. It could have been found that the defendant was near the scene of the crime when it was committed and that he aided and abetted in the commission of it to an extent sufficient to make him a principal. Commonwealth v. Knapp, 9 Pick. 495, 496, 516-518. Commonwealth v. Mannos, 311 Mass. 94, 108-110, 40 N.E.2d 2591. Commonwealth v. Lussier, 333 Mass. 83, 94, 128 N.E.2d 569. The jury could have found that he was seen shortly after the robbery, and not far from the scene of it, running along the street with two other men, one of whom had a lady's black handbag, and that all three got into the defendant's automobile and made their escape. This, together with other evidence which has been summarized above, was sufficient to warrant the submission of the case to the jury.

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3. There are some forty-three assignments of error relating to rulings on evidence. A discussion of them all in detail would not be profitable and would greatly prolong this opinion to no purpose. Many of the assignments relate to discretionary rulings which present no questions of law, such as leading questions, recalling of witnesses, repetitious questions, and similar matters. These and some others do not merit discission. 3 After carefully examining [138 N.E.2d 364] the rulings on evidence we have dealt with such of them as seem to us worthy of discussion.

4. The witness McNeil testified that the defendant was one of the three men he saw running from Bolton Street to E Street shortly after the robbery. He was then permitted to testify subject to objection and exception of the defendant (assignments of error 24 and 25) that he went to the police station on the following Monday where there was a line-up of fifteen men and that he identified the defendant as one of the three men he had seen running on Bolton Street. There is a conflict of authority as to the admissibility of evidence of this sort. But under our own decisions and according to respectable authority elsewhere such evidence is admissible. Commonwealth v. Rollins, 242 Mass. 427, 429,...

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