Com. v. Haney
| Decision Date | 04 December 1970 |
| Parties | COMMONWEALTH v. James M. HANEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Steven R. Rubenstein, Boston (Reuben Goodman, Boston, with him) for defendant.
John C. Mahoney, Asst. Dist. Atty., for the Commonwealth.
Before TAURO, C.J., and SPALDING, KIRK, REARDON, and QUIRICO, JJ.
The defendant, at a trial made subject to G.L. c. 278, §§ 33A--33G, was convicted on an indictment charging him with armed robbery. 1 He appealed.
We summarize so much of the testimony as is necessary to furnish a background for the questions presented. One Nolson Cripps was the manager of the First National Store located at 545 Freeport Street, Dorchester. He testified that on December 27, 1968, at approximately 2 P.M., while on duty in the store office, he heard someone say, 'This is a hold-up.' He looked out toward the grated window of the office and saw a man with a silver or chrome plated thirty-eight caliber revolver in his hand. The gun had rust spots on the end of its barrel. The man with the gun handed Cripps a paper bag and demanded that it be filled with money from the drawer. At this point in his testimony Cripps was shown a gun which he identified as the one that was pointed at him during the holdup. Upon later proof that this and another gun were found on January 3, 1969, in the search of a motorcycle club in Woburn frequented by the defendant, it was admitted in evidence. Cripps made an in-court identification of the defendant as the man who had the gun.
Officer John Gibbons testified that having been informed there was an arrest warrant outstanding for the defendant, he and several police officers went to the vicinity of the motorcycle club in Woburn on January 9, 1969, in a police car. He observed an automobile (operated by the defendant) backing into the street at a high rate of speed. Finding his route of escape blocked by a police car, the defendant shifted into forward speed in order to turn into a parking lot and thus evade the police. Gibbons ran after the defendant, and arrested him at gunpoint, ordering him to put his hands on the steering wheel. As he obeyed, the defendant looked up and to the left. Gibbons made a search of the vehicle and found a gun under the padding that separates the convertible top from the 'normal outside section on the top.' The gun was at the precise place where the defendant had looked when Gibbons first stopped him. The gun, 'a .38 snub-nosed blue revolver with a brown handle,' was admitted in evidence over the objection and exception of the defendant.
The defendant sought to prove an alibi, and supported it with a number of witnesses. His explanation for having a gun in his possession was that it was for protection. He further testified that he attempted flight because he had a gun in the car. On cross-examination the defendant admitted that at the time of his arrest there was ammunition for the gun in his jacket. There was expert testimony that this gun was capable of being fired.
The defendant argues only one question (assignment of error no. 5). He contends that the testimony of Officer Gibbons concerning the gun found in the car and the gun itself ought not to have been admitted in evidence, since the gun was not and could not have been the one used in the robbery. This evidence, it is argued, was prejudicial to the defendant because it permitted the inference that he was a person of vicious and dangerous propensities.
The general rule is Commonwealth v. West, --- Mass. ---, --- a, 258 N.E.2d 22, 24; Commonwealth v. O'Toole, 326 Mass....
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