Com. v. Dahlstrom
| Decision Date | 08 November 1962 |
| Citation | 345 Mass. 130,185 N.E.2d 759 |
| Parties | COMMONWEALTH v. Warren S. DAHLSTROM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Ronald J. Chisholm, Winchester, for defendant.
Aaron K. Bikofsky, Asst. Dist. Atty. (Roger E. Gordon, Asst. Dist. Atty., with him), for the Commonwealth.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.
This is an appeal under the provisions of G.L. c. 278, §§ 33A-33G, as amended through St.1955, c. 352, § 1, from a conviction of attempting to break and enter a building with intent to commit larceny. The case is here on a summary of the record, a transcript of the evidence, and two assignments of error. A companion case against Victor Dahlstrom, a brother of the defendant, was tried together with this one.
The first assignment of error is the denial of the defendant's motion for a directed verdict. There was evidence that the defendant and his brother, Victor, were together on the evening of June 23, 1961, and the early morning of June 24, 1961. They had visited various drinking establishments in Cambridge, Saugus, and Malden. The defendant was driving a car. At about 2 A.M. he drove down Salem Place, Malden, where the brothers had formerly lived, turned the car around so it headed the other way, and then parked 'alongside' a variety store.
Two police officers, on cruiser duty at the time, came into the vicinity of the store and noticed Victor in a crouched position in front of a bread box used for the delivery of bread before the store is opened and located in the doorway. One officer went down Salem Place as far as he could but there was an automobile obstructing the way. He got out of the car and 'went after' Victor who had arisen from his crouched position and was walking quickly down the street, away from the car and the store. The other officer 'checked' the parked car that had obstructed the way and saw the defendant 'behind the wheel of the car.' The officers found a tire wrench under the bread box.
Six days later, while Victor was operating a motor vehicle, one of the same two officers stopped and questioned him. Victor made certain oral statements in which he admitted his guilt of the crime charged. These statements, later reduced to writing and signed by him, implicated the defendant.
In Commonwealth v. Conroy, 333 Mass. 751, 754, 133 N.E.2d 246, 248, a case involving breaking and entering, it was held that '[t]he presence of the defendant at an early morning hour looking in a window of the restaurant while someone was moving about engaged, as it could have been found, in rolling the safe to a back room out of sight from the street, compellingly called for reasonable explanation.' Similarly, on the evidence here, a jury could have found that an attempt to break and enter the building had been made, 'that the defendant by prearrangement was stationed in a position where he might render * * * [his brother, Victor] aid and encouragement, as a lookout to give warning, or as a decoy to beguile the police and others from possible suspicions, or as an ally in making escape or in meeting any eventuality.' Commonwealth v. Conroy, supra, 755, 133 N.E.2d 249. A defendant so engaged is equally guilty with the perpetrator of the crime. Commonwealth v. Lavery, 255 Mass. 327, 333, 151 N.E. 466. Commonwealth v. Conroy, supra, 755, 133 N.E.2d 246. There was no error in the denial of the defendant's motion for a directed verdict.
The defendant's second assignment of error relates to the refusal of the judge to grant the defendant's request for an instruction. The incriminating oral and written statements made by Victor six days after the alleged crime were introduced at the trial against Victor and excluded in the case against Warren. However, the judge refused to grant the defendant's request for an instruction to the jury 'that the statements which were limited to Victor Dahlstrom and statements which were excluded as to Warren Dahlstrom cannot be used in the case against Warren Dahlstrom.' Instead, with reference to this phase of the case, in his charge to the jury the judge stated: ...
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Com. v. Angiulo
...1233, or where the declarant has been apprehended before the statement had been made, as was the case in Commonwealth v. Dahlstrom, 345 Mass. 130, 132, 185 N.E.2d 759 (1962), we cannot say that the joint venture had terminated at the time the statements were made. The relationship of the de......
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Com. v. Beckett
...must pass on before he may permit the jury to consider whether that evidence may be used against all. See Commonwealth v. Dahlstrom, 345 Mass. 130, 134, 185 N.E.2d 759 (1962); Commonwealth v. Mannos, 311 Mass. 94, 106, 40 N.E.2d 291 (1942). 5 Among the findings which the jury must make, as ......
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