Com. v. Asherowski

• Decision Date: 15 October 1907
• Citation: 82 N.E. 13,196 Mass. 342
• Parties: COMMONWEALTH v. ASHEROWSKI et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 342

82 N.E. 13

COMMONWEALTH v. ASHEROWSKI et al.

Supreme Judicial Court of Massachusetts, Worcester.

October 15, 1907

COUNSEL

Herbert Parker, Webster Thayer, and Robert Walcott, for plaintiffs.

George S. Taft, Dist. Atty., and Ernest I. Morgan, Asst. Dist Atty., for the Commonwealth.

OPINION

SHELDON J.

This case went to the jury only upon the third and fourth counts and the jury convicted the defendants only upon the fourth count, which charged the defendants as accessories before the fact to a principal whose name was unknown to the grand jury and the defendants' exceptions raise the question whether it was competent for the jury to return a verdict of guilty upon this count. The count charges that some person unknown did burn certain cloth and garments which were insured in the Franklin Insurance Company against loss or damage by fire, with intent thereby to injure the said insurers; and that these defendants procured, etc., the said unknown person to commit that felony.

We agree with the defendants that in order to convict them it was necessary to prove that some person had committed the principal felony charged, had, that is to say, burned these goods with the specific intent to injure the insurers thereof. Rev. Laws, c. 208, § 10; Com. v. Goldstein, 114 Mass. 272; People v. Henderson, 1 Parker, Cr. R. (N. Y.) 560; Staaden v. People, 82 Ill. 432, 25 Am. Rep. 333; People v. Schwartz, 32 Cal. 160; Queen v. Bryans, 11 Up. Can. C. P. 161. The intent to injure the insurer is a necessary ingredient of the crime described in Rev. Laws, c. 208, § 10; and unless the person who did the burning is shown to have acted with that intent, the crime is not proved to have been committed. And these defendants, who are charged in the count before us only as accessories before the fact, could not be convicted unless it was proved that the principal offense was in fact committed in violation of the statute. Com. v. Adams, 127 Mass. 15, 17, 19; Com. v. Glover, 111 Mass. 395; Com. v. Phillips, 16 Mass. 423. Even though the defendants may have procured this fire to be set, yet if the person who set it, though acting by their procurement, was in fact wholly ignorant of the insurance, and had no actual intent to injure the insurer, he acted innocently so far as this charge is concerned, and could not be found to have committed the offense charged in the indictment. These defendants, in that event, very likely may have committed a substantive crime; it may well be that they could themselves be held to be guilty of the offense which they would thus have committed by an innocent hand. Com. v. Hill, 11 Mass. 136. But they could not be convicted as accessories before the fact to a felony which had not been actually committed.

The complaint now made by the defendants, however, is that the court refused to order their acquittal. None of the instructions actually given are stated in the bill of exceptions; and it must be presumed that full and accurate instructions were given to the jury upon all the questions raised at the trial, if it was proper to submit the case to them at all. Accordingly the only question before us is whether the jury had a right to return a verdict of guilty upon the fourth count of the indictment.

It is earnestly and ably argued by counsel for the defendant that there was absolutely no evidence that the person who set the fire had any knowledge that the property was insured, or had any intent by means of the fire to injure the insurer. Undoubtedly there was no direct evidence of these facts; but if there was circumstantial evidence from which they might have been inferred by the jury, that was sufficient. Even in capital cases, convictions resting either entirely or mainly on circumstantial evidence have been sustained by this court; and it has been left to the jury to determine whether the evidence came up to the stringent standard contended for by the defendants under the rules laid down in Com. v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711; Com. v. Tucker, 189 Mass. 457, 76 N.E. 127, 7 L. R. A. (N. S.) 1056; Com. v. Best, 180 Mass. 492, 496, 62 N.E. 748; Com. v. Umilian, 177 Mass. 582, 59 N.E. 439; Com. v. Williams, 171 Mass. 461, 462, 50 N.E. 1035. This was substantially the ruling given in Com. v. Gilbert, 165 Mass. 45, 49, 42 N.E. 336, in which a conviction resting upon circumstantial evidence was sustained. As was said by Holmes, J., in Com. v. Doherty, 137 Mass. 245, 247: 'When a material fact is not proved by direct testimony, but is left to be inferred from the facts directly sworn to, the inference need not be a necessary one. There is a case for the jury, unless the inference either is forbidden by some special rule or law, or is declared unwarranted because too remote, according to the ordinary course of events. If there is a case for the jury, they are at liberty to use their general knowledge in determining what inferences are established beyond a reasonable doubt; and the facts inferred by them are as properly proved as if directly testified to.'

Upon the evidence stated in the bill of exceptions, the jury were fully warranted in finding that the fire set in the defendants' store shortly before 1 o'clock in the morning was of...