Com. v. Jones

• Decision Date: 05 June 1972
• Citation: 362 Mass. 83,283 N.E.2d 840
• Parties: COMMONWEALTH v. Otis JONES, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 840

283 N.E.2d 840

362 Mass. 83

COMMONWEALTH v. Otis JONES, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 3, 1972.

Decided June 5, 1972.

Maurice F. Ford, Dorchester, for defendant.

Gerald F. Muldoon, Asst. Dist. Atty. (Daniel C. Mullane, Winthrop, with him), for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, and HENNESSEY, JJ.

TAURO, Chief Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, from convictions on two indictments each charging an unarmed robbery. G.L. c. 265, § 19. He assigns as error the refusal of the judge to direct verdicts on so much of the indictments as charged unarmed robbery, on the basis that the evidence in each case disclosed at most larceny and not robbery.

The pertinent evidence was as follows: On the evening of December 14, 1970, at approximately 6:30 P.M., Mrs. Florence Spring and her daughter, Miss Madeline Spring, left their apartment in Dorchester to go shopping by automobile. Each lady was carrying a pocketbook. Florence Spring opened both front and rear doors on the passenger's side in search of a snow scraper with which to remove snow from the car. She was unable to find it. Madeline Spring then knelt down on the front seat with feet extended outside the car and, leaning across the seat, she felt with her hand on the floor for the scraper. Meanwhile, Florence Spring opened the trunk of the car, took out a stick, and started to clean the rear window from the driver's side.

Madeline Spring testified that, while feeling along the floor of the front seat, she realized she 'couldn't move . . . (her) foot,' '(f)or a minute' she was 'stunned,' but that then she turned back and saw 'a black face with eyes' in the window and she 'knew somebody was holding the door on . . . (her) foot.' Miss Spring stated that she became 'petrified' and screamed; that she looked up and put her hand on the horn; and that while in this position, she observed a 'shadow . . . (go) by the driver's side towards the back of the car.' The door was then released and she got out of the car. In answer to the question, 'At that time, did you observe your pocketbook?' she indicated, 'No.'

Florence Spring testified that, upon hearing her daughter's scream, she 'started . . . to the front of the car'; that she saw a young man on the passenger's side by the headlight; that this young man started across the street but turned and approached her; and that he 'grabbed . . . (her) pocketbook.' She indicated that the pocketbook was on her arm at the time. She described the taking as follows: 'I really couldn't tell you what he did. All I knew he was standing there. Next thing I knew, I felt something off my arm. I realized my bag was gone.' In answer to the question, '(H)ow did you feel?' Mrs. Spring said: 'Petrified. . . . I was scared to death.' She also testified that, after the pocketbook was taken, 'I said it belonged to me, and I wanted it, and he started towards the sidewalk . . . and I started after him with the stick in my hand.'

About two hours after the incidents described by the victims, the police arrested the defendant and three other males in his company. They found credit cards and other articles from the women's pocketbooks in the possession of the defendant and one of the other men. ¹ Subsequently, at trial, Florence Spring identified the defendant as the young man who had taken her pocketbook. Madeline Spring was unable to identify the defendant or any codefendant as either the face or the shadow she had seen during the crime.

1. We begin with a general discussion of the elements which distinguish robbery from larceny.

The present unarmed robbery statute follows substantially the language of predecessor statutes, the first enacted in 1804. Compare G.L. c. 265, § 19, with St. 1804, c. 143, § 7; Rev.Sts. c. 125, § 15; Gen.Sts. c. 160, § 24; Pub.Sts. c. 202, § 24; and R.L. c. 207, § 19. We have construed this language as restating the common law of robbery. See Commonwealth v. Clifford, 8 Cush. 215, 217. Under our statutes, as at common law, in order to sustain a charge of robbery, there must be proof of a larceny ² (1) 'from . . . (the) person,' and (2) 'by force and violence, or by assault and putting in fear.' G.L. c. 277, § 39. See Commonwealth v. Novicki, 324 Mass. 461, 464--465, 87 N.E.2d 1. See also LaFave and Scott, Criminal Law, 692; Anderson, Wharton's Criminal Law & Procedure, § 545. In other words, although it carries a separate label, 'robbery is but an aggravated form of larceny.' People v. Gallegos, 130 Colo. 232, 235, 274 P.2d 608, 609. See Commonwealth v. Mahoney, 331 Mass. 510, 513, 120 N.E.2d 645. See also Perkins, Criminal Law (2d ed.) 280; 46 Am.Jur., Robbery, § 3.

The common law came to regard robbery as a more serious offence than larceny because of the added element of personal violence or intimidation. 4 Blackstone, Commentaries (Cooley, 4th ed.) 242--243. 3 Co.Inst. 68. The exertion of force, actual or constructive, remains the principal distinguishing characteristic of the offence. ³ Commonwealth v. Novicki, supra, 324 Mass. at 464, 87 N.E.2d 1; Commonwealth v. Beaulieu, 333 Mass. 640, 644, 133 N.E.2d 226; COMMONWEALTH V. MCCARTHY, MASS. , 276 N.E.2D 696.^A Because the requirement is stated in the disjunctive, if there is actual force, there need be no fear (constructive force), and vice versa. Commonwealth v. Humphries,7 Mass. 242, 244. Whether actual or constructive force is employed, the degree of force is immaterial so long as it is sufficient to obtain the victim's property 'against his will' (G.L. c. 277, § 39). Anderson, Wharton's Criminal Law & Procedure, §§ 555--557. Similarly, in every case there must be a causal connection between the defendant's use of violence or intimidation and his acquisition of the victim's property. LaFave and Scott, Criminal Law, 696--702. Anderson, Wharton's Criminal Law & Procedure, § 559. 46 Am.Jur., Robbery, § 19. See Commonwealth v. Novicki, supra, 324 Mass. at 465, 87 N.E.2d 1. See generally Hale, P.C. (1847 ed.) 534; 77 C.J.S. Robbery, §§ 11--14.

The element of 'from the person' is the other distinctive aspect of robbery. Although some statutory definitions of the offence, including our own (G.L. c. 277, § 39), speak of a taking 'from . . . (the) person' without adding 'or in his presence,' a larceny in the presence of the victim is sufficient to constitute robbery. Commonwealth v. Mahoney, 331 Mass. 510, 513, 120 N.E.2d 645; People v. Braverman, 340 Ill. 525, 530--531, 173 N.E. 55; State v. Deso, 110 Vt. 1, 6, 1 A.2d 710, and cases cited. '(The phrase 'or in his presence') adds nothing other than emphasis because, as pointed out by Coke, where deprivation is accomplished by violence or intimidation, 'that which is taken in his presence is in law taken from his person. " Perkins, Criminal Law (2d ed.) 282, quoting 3 Co.Inst. 69. An object is deemed to be within the presence of the victim if it is within his area of control. Commonwealth v. Homer, 235 Mass. 526, 533, 127 N.E. 517; Anderson, Wharton's Criminal Law & Procedure, § 553; 77 C.J.S. Robbery § 9, at p. 455.

2. The question whether the snatching or sudden taking of property constitutes robbery has arisen in other jurisdictions although not in Massachusetts. Cf. Commonwealth v. Ordway, 12 Cush. 270. ⁴ In Kentucky, the rule is that snatching, without more, involves the requisite element of force to permit a jury verdict on a charge of robbery. See Jones v. Commonwealth, 112 Ky. 689, 692--695, 66 S.W. 633; Brown v. Commonwealth, 135 Ky. 635, 640, 117 S.W. 281. According to the rule prevailing in most jurisdictions, however, snatching does not involve sufficient force to constitute robbery, unless the victim resists the taking or sustains physical injury, or unless the article taken is so attached to the victim's clothing as to afford resistance. ⁵ See LaFave and Scott, Criminal Law, 696--697; Anderson, Wharton's Criminal Law & Procedure, § 561; 46 Am.Jur., Robbery, § 21; 77 C.J.S. Robbery § 17. See generally 57 L.R.A. 432.

We prefer the Kentucky rule on purse snatching. The majority jurisdiction rule, in looking to whether or not the victim resists, we think, wrongly emphasizes the victim's opportunity to defend himself over the willingness of the purse snatcher to use violence if necessary. See Note, 23 J.Cr.Law, 111, 115. Historically, however, the law has singled out the robber from other thieves because of his readiness to inflict bodily injury upon his victims. ⁶ In a snatching or sudden taking, so long as the victim is aware of the application of force which relieves him of his property, the crime is, at least to some degree, 'against . . . (the victim's) will.' G.L. c. 277, § 39. Clearly, more is involved than in a mere stealthy taking where the victim has no present realization of the theft. See Anderson, Wharton's Criminal Law & Procedure, § 560. In the circumstances of a purse snatching, we believe the force applied is sufficient to make the crime a robbery, even though the application of force may, in practice, be so quick as to deny the victim any opportunity to resist.

3. We consider first the indictment arising from the taking of Florence Spring's pocketbook.

The defendant argues that the evidence does not disclose the use of force, actual or constructive, to take the victim's property. It is conceded that the Commonwealth was not required to show both actual and constructive force. See Commonwealth v. Humphries, 7 Mass. 242, 244.

Snatching necessarily involves the exercise of some actual force. For the reasons stated, supra, we hold that, where, as here, the actual force used is sufficient to produce awareness, although the action may be so swift as to leave the victim momentarily in a dazed condition, the requisite degree of force is present to make the crime robbery. In any event, Mrs. Spring testified that she was '(p)etrified.' And also: 'I was scared to death.' Whether her...