Com. v. Egleson

• Decision Date: 30 January 1969
• Citation: 355 Mass. 259,244 N.E.2d 589
• Parties: COMMONWEALTH v. Nick M. EGLESON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 589

244 N.E.2d 589

355 Mass. 259

COMMONWEALTH v. Nick M. EGLESON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 6, 1969.

Decided Jan. 30, 1969.

John G. S. Flum, Boston, for defendant.

James M. Kickham, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, SPIEGEL and REARDON, JJ.

WILKINS, Chief Justice.

The defendant was convicted of the crime of trespass and fined $20. General Laws (Ter.Ed.) c. 266, § 120, in part provides, 'Whoever, without right, enters or remains in or upon the dwelling house, buildings, boats or improved or enclosed land, wharf or pier of another, after having been forbidden so to do by the person who has the lawful control of said premises, either directly or by notice posted thereon, shall be punished by a fine of not more then twenty dollars.'

The evidence was uncontradicted. The trespass occurred at a building owned by the city of Boston at 20 South Street in the Jamaica Plain district. The building consists of four brick stories, and contains several facilities: an office of Selective Service System Local Board No. 151, a Civil Defense office, and an entrance to a running track on the fourth floor; a gymnasium with four basketball courts, a dental clinic, and a baby clinic on the third floor; a locker room on the second floor; offices of the Visiting Nurse Association and of the custodian on the first floor; and a swimming pool in the basement. Two staircases lead from the ground floor to the fourth floor. There are numerous bulletins setting forth information of public interest, such as employment opportunities.

One Slowe was the custodian in charge of the building. On the morning of April 2, 1968, at 6:15 A.M. he arrived at the building, and unlocked the doors. Thereafter the front doors were left open. During the next forth-five minutes two women in charge of the Local Board office and about twenty young men reporting to that office entered the building. Pre-inductees normally arrive before 7 A.M. and stand in the lobby of the fourth floor in a space about fifteen by twenty feet until 7:30 A.M. when they go downstairs and leave by bus. The practice was for pre-inductees to check in with the Board, obtain their files, and taken them to the Army Base, where they undergo physical examination.

That morning between 6:20 and 6:25 the defendant, an instructor at Massachusetts Institute of Technology who worked with the 'Boston Draft Resistance Group,' accompanied by three girls, entered the building. Slowe inquired whether the defendant had business in the building, to which the latter replied that he wished to speak to pre-inductees as to their rights in relation to the draft. Slowe requested the defendant to leave the building. The defendant asked whether pre-inductees were allowed to enter. Slowe said that they were allowed to go to the fourth floor. Slowe also said that the defendant was interfering with his cleaning the building and that only cleaning personnel and persons having business with the Draft Board were normally admitted at that hour. The defendant and his companions then went outside the first set of doors and remained in the entrance patio.

About 6:35 the defendant, accompanying a pre-inductee, ree ntered. Pursuant to a telephone call by Slowe, police officers arrived about 6:45. The officers and Slowe found the defendant speaking with a group of pre-inductees on the landing between the third and fourth floors. At that time about twenty pre-inductees were present, most of them on the fourth floor, but some were on the staircase between the third and fourth floors. The officers said if the defendant would leave, they would not arrest him. The defendant stated that he felt that he had the right to stay, and the defendant was arrested.

In talking to pre-inductees, the defendant identified himself and his association with the 'Boston Draft Resistance Group,' stated his dislike of the Vietnam War, and informed them of their rights. He did not force conversation upon anyone. He did not counsel anyone to commit an illegal act, and did not intend to create a disturbance or interfere with the cleaning. He insisted on entering and remaining in the building because it would have been very difficult, if not impossible, to speak 'meaningfully' with pre-inductees outside the building.

1. The defendant asserts, without citation of authority, that G.L. c. 266, § 120, covers only private property and 'does not apply to buildings owned by a municipality.' But in 1895 there was a decision by this court in which the contrary was assumed without discussion. Fitzgerald v. Lewis, 164 Mass. 495, 41 N.E. 687. That case arose under lineal statutory predecessors of § 120, namely Pub.Sts. c. 203, §§ 99, 100, and St.1890, c. 410, and upheld police arrests for trespasses upon real estate owned by the city of Springfield. The land was part of the poor fram upon which the almshouse was located. The statute contains no exceptions, and we see no reason to believe that there was any inadvertent oversight in the opinion. We are unimpressed with the defendant's analysis of Pub.Sts. c. 203, § 99, and his failure to give adequate weight to the amendment by St.1890, c. 410, which expressly covered 'buildings.' ¹ The present statute, so far as material, is in...