Com. v. Chapman

• Decision Date: 20 December 1962
• Citation: 186 N.E.2d 818,345 Mass. 251
• Parties: COMMONWEALTH v. Ralph W. CHAPMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 818

186 N.E.2d 818

345 Mass. 251

COMMONWEALTH v. Ralph W. CHAPMAN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 5, 1962.

Decided Dec. 20, 1962.

Joseph D. Neylon, Asst. Dist. Atty. (Ruth I. Abrams, Asst. Dist. Atty., with him), for the Commonwealth.

C. Thomas Zinni, Boston (Hrant H. Russian, Belmont, with him), for defendant.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.

SPALDING, Justice.

The defendant, who was tried to a jury under an indictment charging armed robbery, was found guilty. The trial was conducted subject to G.L. c. 278, §§ 33A-33G, and the case comes here by appeal.

1. The seventh assignment of error, which will be discussed first, is based on the defendant's exception to the denial of his motion for a directed verdict.

There was evidence of the following: On November 13, 1961, the defendant, aged seventeen, and his two companions, Kehoe and Scurto, spent the evening playing cards and drinking at the home of Kehoe's sister in Malden. During the evening Scurto produced a revolver which he showed to Chapman and Kehoe. The defendant, who for some time had not been living with his mother, stated that he planned to go to New York and wished to go to his mother's house to get his clothes. Scurto agreed to drive him there in his automobile. At some time before they went to Mrs. Chapman's house, Scurto said, 'Let's go rob Mrs. Chapman.' Shortly after midnight, the defendant, Kehoe, and Scurto drove in the latter's car to the Chapman home in Reading. Scurto had in his pocket the revolver which he had displayed earlier, and the defendant knew that he was carrying it. During the trip to the Chapman home, the defendant said to his companions, 'When we get there, take anything you want in the house.' They arrived at the Chapman home around two o'clock in the morning. Finding the door locked, the defendant knocked on it and Mrs. Chapman opened the door. The defendant and his companions entered. The defendant told him mother that he had come to get his clothes; an altercation ensued, during which the defendant pounded on the door and 'told his mother to shut up or he'd kill her.' Mrs. Chapman 'went into hysterics.' Shortly after their arrival Mrs. Chapman noticed something protruding in Scurto's pocket and asked him if it was a gun. At first, Scurto denied that it was a gun but later admitted that he was carrying a gun and took it out of his pocked, saying in the defendant's presence, 'Yes, this is a gun. I can use it if I have to.' He then 'started twirling it around.' Subsequently, Scurto told Kehoe to 'get them [Mrs. Chapman and her eleven year old son, David] into the other bedroom.' Kehoe then came to the door of Mrs. Chapman's bedroom, pointed the gun at her and David, and ordered them into another bedroom. When Kehoe pointed the gun at Mrs. Chapman she was 'pretty shaky * * * and * * * scared.' The defendant told his companions to take what they could find. Upon being informed by his companions that they had found some money, the defendant told them to take it as 'his mother had plenty of money in the bank.' Scurto then took the money ($120) and also a ring and a watch, all of which was the property of Mrs. Chapman. The defendant and his companions then departed in Scurto's automobile. Scurto testified that after the money was stolen, 'We all made a pact that we wouldn't say anything that would incriminate the other person * * * and that was agreed to.' Of the $120 stolen from Mrs. Chapman, Scurto gave $10 each to Kehoe and the defendant, and kept the remainder.

We are of opinion that the defendant's motion for a directed verdict was rightly denied. The defendant admitted that he had participated in the events outlined above, but testified that he acquiesced in the conduct of Scurto and Kehoe for the sole purpose of getting them out of the house without causing harm to his mother. The jury could have disbelieved this explanation. There was evidence which would amply warrant a finding that the defendant had committed every necessary element of the offence charged.

2. The exception on which the defendant's first assignment is grounded was to the admission of a statement made by him. The defendant was arrested in Stoneham an hour or two after the robbery. Around eight o'clock that morning he made a statement to a police officer who, after writing it down, submitted it to him and he signed it. At the trial, after a lengthy voir dire, the judge ruled that the statement was voluntary and admitted it in evidence. In accordance with the established rule in this Commonwealth, the jury were told that they were to pass on the confession and were to disregard it if they found it was not voluntary. See Commonwealth v. Marshall, 338 Mass. 460, 155 N.E.2d 798. There was ample evidence that the statement was voluntary.

While there was evidence that the defendant and his companions had consumed a considerable quantity of beer before and after they went to the Chapman home, it could have been found that the defendant was not so intoxicated as to be unable to understand what he was saying. See Commonwealth v. Howe, 9 Gray 110. Indeed, Scurto, as did the police officers, testified that the defendant was sober.

The defendant contends that he was prejudiced because the judge referred to the statement several times as a confession. This contention is completely lacking in merit. At no time did the defendant object to this characterization. But at all events, we are of opinion that the characterization was correct. Moreover, by reason of the statement having been treated as a confession, the defendant was accorded greater safeguards with respect to its admissibility than he would have had in the case of an admission. See Commonwealth v. Marshall, 338 Mass. 460, 462, 155 N.E.2d 798. Compare Commonwealth v. Haywood, 247 Mass. 16, 17-18, 141 N.E. 571.

3. The defendant's second assignment of error relates to that portion of the charge wherein it was said, '[I]t isn't necessary in order to find the defendant guilty of this offense, to find that the gun, the weapon, played any part-- direct part in this operation.' There was no error. In Commonwealth v. Nickologines, 322 Mass. 274, 277, 76 N.E.2d 649, 651, this court said, 'The offence of robbery while armed is but an aggravated form of common law robbery made punishable in a certain manner by G.L. (Ter.Ed.) c. 265, § 17 * * *. It is not necessary to show the use of a dangerous weapon in proving the offence of robbery while armed. The gist of the offence is being armed, not the use of the weapon.'

4. The third...