Com. v. Conlin

• Decision Date: 20 May 1905
• Citation: 188 Mass. 282,74 N.E. 351
• Parties: COMMONWEALTH v. CONLIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 282

74 N.E. 351

COMMONWEALTH v. CONLIN et al.

Supreme Judicial Court of Massachusetts, Suffolk

May 20, 1905

COUNSEL

Frederic H. Chase, 2d Asst. Dist. Atty., for the Commonwealth.

M. J Creed and J. Porter Crosby, for defendants.

OPINION

LATHROP J.

The statute under which the defendants were indicted (Rev. Laws c. 208, § 41) had its origin in St. 1853, p. 475, c. 194, and has been in force ever since. Gen. St. 1860, c. 161, § 34; Pub. St. 1882, c. 203, § 36. Since it was enacted, but two cases under it have been before this court. Com. v Tivnon, 8 Gray, 375, 69 Am. Dec. 248, and Com. v. Day, 138 Mass. 186. The first case decided, among other points, that the offense 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objects charged in the indictment; that it was not necessary that it should appear that the tools or implements were originally made or intended for an unlawful use, it being enough that they were suitable for the purpose; and that the possession might be actual or constructive.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 Com. 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 Com. 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 were also instructed that, if the defendants were merely messengers to...