Com. v. Devlin

• Decision Date: 20 March 1957
• Parties: COMMONWEALTH v. Arthur L. DEVLIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 269

141 N.E.2d 269

335 Mass. 555

COMMONWEALTH v. Arthur L. DEVLIN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 3, 1956.

Decided March 20, 1957.

Wendell F. Grimes, Boston, for defendant LeBlanc.

Francis Juggins, Boston, for defendant Devlin.

John F. Kelley, Cambridge (Leonard J. Mullen, Cambridge, with him), for defendant Arsenault.

Lyman C. Sprague, Asst. Dist. Atty., Boston (Robert U. Holden, Shirley Center and John P. Forte, Bedford, Asst. Dist. Attys., with him), for the Commonwealth.

Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and CUTTER, JJ.

WILLIAMS, Justice.

The defendant have been found guilty of murder in the first degree of one Merrill R. Lovinger without recommendation by the jury that sentence of death be not imposed G.L. (Ter.Ed.) c. 265, § 2, as appearing in St.1951, c. 203, as amended by St.1955, c. 770, § 78 and each has been sentenced to death. G.L.(Ter.Ed.) c. 279, § 4, as appearing in St.1935, c. 437, § 3. The executions of the sentences have been stayed pending their appeals, which are before us pursuant to G.L. (Ter.Ed.) c. 278, §§ 33A-33G, as amended, accompanied by a summary of the record, a transcript of the evidence, and their respective assignments of error.

The indictment, following the statutory form, G.L. (Ter.Ed.) c. 277, § 79, charged that the three defendants on February 4, 1955, at Newton in the county of Middlesex 'did assault and beat one Merrill R. Lovinger with intent to kill and murder him, and by such assault and beating did kill and murder said Merrill R. Lovinger.'

In response to motions by the defendants the Commonwealth specified in the case against LeBlanc that the alleged murder was committed on the premises at 341 Waverley Avenue, Newton, on February 4, 1955, between the hours of 6 p. m. and approximately 6:40 p. m.; in the case against Arsenault that it was committed 'on the street floor of the house located at 341 Waverley Avenue, Newton, in or between the dining room and the living room,' and both in that case and in the case against Devlin that it was committed 'with deliberately premeditated malice aforethought and/or in the commission or attempted commission of a crime punishable with death or imprisonment for life.'

There was evidence in substance as follows. The defendants lived in Waltham and became acquainted while working on different occasions in a lunch room in that city. On October 23, 1954, Devlin and Arsenault visited a gun dealer named Yeaton in Hillsboro, New Hampshire, and Devlin purchased a .45 calibre Colt automatic pistol stating that his name was Arthur Johnson. They returned to Hillsboro on October 30 and Arsenault purchased a similar .45 calibre Colt automatic, stating that his name was Sam Marshall. On November 13 they again called on Yeaton and Devlin bought a .32 calibre automatic pistol of German manufacture. On each visit the purchaser used his assumed name in signing a book in which Yeaton recorded his retail sales, and which contained a form of certificate that 'I have never been convicted of a felony against the person or property of another.' Devlin thereafter kept possession of the two Colt pistols at his home in Waltham. Arsenault carried away the German pistol and subsequently disposed of it in Mexico. On or about February 1, 1955, Devlin received a long distance telephone call from Arsenault who was 'hitchhiking' home from the west. He arrived at Devlin's home on the evening of February 3. On the following morning, Friday, February 4, Devlin and LeBlanc went to Watertown and bought two pairs of brown cotton gloves, a hat and a length of clothes line. They drive in LeBlanc's automobile to Newton and LeBlanc pointed out a house at number 341 Waverley Avenue as the home of one Carl Silverman, a man who, he had told Devlin, was a wealthy dress manufacturer and was likely to be carrying a substantial amount of money on Fridays.

Arsenault joined the other two about 4 p. m. after they had returned to Devlin's home. Devlin produced the Colt pistols and showed the others the effect of a silk stocking pulled down over the face. The rope was cut up into ten pieces about three feet in length and one longer piece. A hat was purchased for Arsenault.

At about six o'clock the three defendants started for Newton in LeBlanc's automobile. They drove to 341 Waverley Avenue and seeing two automobiles parked in front of the house circled around a block formed by Waverley Avenue, Brackett Street, Park Avenue, and Green Park two or three times. They stopped on Park Avenue, and Devlin and Arsenault took out their pistols and pulled silk stockings down over their faces. Arsenault had the pieces of rope in his pocket. They then proceeded to the corner of Green Park and Waverley Avenue on the southwesterly corner of which number 341 Waverley Avenue was located. It was agreed that Devlin and Arsenault would enter the house and LeBlanc would drive around, coming back every ten minutes and, if he saw that the lights in the front of the house were out, would stop for the other two. Devlin lent him a watch so that he could check on the time. Devlin and Arsenault, masked with the stockings and carrying the pistols which were loaded, went to the front entrance of the house and opened a glass storm door. Devlin rang the door bell and Fanna Lovinger, the daughter of one Henry Mintz who owned the house, came to the door. The door 'stuck' slightly and she heard a sound 'like tapping on the lock from the outside.' She called out, 'Just a minute, the lock is stuck.' The door opened to her right and the two defendants with hats pulled low over their masks stepped in with the pistols in their hands. Devlin was slightly ahead and pushed Mrs. Lovinger back with his left hand. She screamed and Devlin said, 'All right, stand back and keep quiet and everything will be all right.' She started to pull on his left sleeve and said, 'Don't shoot my mother. Don't hurt my mother.' Arsenault ran by them to the kitchen at the end of the hall where Mrs. Mintz was washing the supper dishes. She also screamed and ran through the dining room into the living room at the front of the house. Arsenault followed her and when he was in the dining room near the living room entrance, Merrill Lovinger, the husband of Fanna, stepped out of a side room. He was heard to say, 'There will be none of this here,' and almost immediately a shot was fired from the pistol held by Arsenault. Lovinger fell to the floor. He was shot through the heart, the bullet entering to the left of the midline of the body between the third and fourth ribs, and lodging in the lower back between the eleventh and twelfth ribs. It was not a so called 'contact' shot, but in the opinion of ballistic experts was fired at a distance of from two and a half to six inches from the body. Lovinger died before reaching the hospital, the cause of death being 'gunshot wound of the chest with perforation of the heart and lungs and internal hemorrhage.' After the shot the two defendants left by the front door and ran down Waverley Avenue in a northerly direction. Devlin threw away his hat and silk stocking and Arsenault the rope. The rope was later found in front of 259 Waverley Avenue. Arsenault's hat and a button of his coat were found in the house at the scene of the shooting. Arsenault boarded a westerly bound street car on Tremont Street near the northerly end of Waverley Avenue and shortly thereafter was arrested in Watertown Square. Devlin was arrested on Tremont Street when apparently seeking to board another street car after threatening to shoot a police officer.

Meanshile, after the other two defendants left the automobile to enter the house, LeBlanc drove around through Park Avenue, turned left from Green Park into Waverley Avenue, and drove in a northerly direction toward Tremont Street. He made a U turn and came back up Waverley Avenue. Seeing an automobile which he suspected was following him and which in fact contained two police officers he continued in a southerly direction by the police automobile and the Mintz house. He was arrested at about 7:30 p. m. on the same evening while parked without lights on Waverley Avenue a short distance from the scene of the shooting.

There was little dispute as to the objective facts disclosed by the evidence. Each defendant made incriminating admissions to the police.

There was evidence that Arsenault told a police officer, Lieutenant McMullen, that he said to Mrs. Mintz, 'Stop your screaming, lady, I am not going to hurt you. All I want is money,' and that Devlin told police captain Crowley that when he and Arsenault were running away he asked Arsenault, 'What * * * did you shoot him for' and Arsenault said, 'He grabbed the barrel of my gun. What * * * would you do?' The statements were admitted respectively as evidence only against the persons who made them.

Each defendant testified at the trial. Arsenault and Devlin admitted the purchase of the pistols from Yeaton, the use of the assumed names, and their prior convictions of felonies. In their testimony they described in similar terms the plan to commit armed robbery in the house at 341 Waverley Avenue and their entrance into the house armed with the pistols purchased from Yeaton. LeBlanc denied knowledge of the planned robbery until the stop was made to don the masks on Park Avenue but admitted that he then agreed to drive around the neighborhood as the others suggested and that he expected to participate in the receipts of the robbery.

A principal contention of each defendant was that at some time he abandoned the enterprise. Arsenault and Devlin testified that after they rang the door bell they noticed the name H. Mintz on the door plate, realized that it was not Silverman's house and resolved to leave. However, on observing that LeBlanc had left and the door was opened, they entered the house but without intent to rob and attempted to convince the screaming...