Com. v. Krasner

• Decision Date: 25 February 1971
• Citation: 267 N.E.2d 208,358 Mass. 727
• Parties: COMMONWEALTH v. Stephen F. KRASNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 208

267 N.E.2d 208

358 Mass. 727

COMMONWEALTH v. Stephen F. KRASNER.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 7, 1970.

Decided Feb. 25, 1971.

Terence M. Troyer, Legal Asst. Dist. Atty., for the commonwealth.

Norman S. Zalkind, Boston, for defendant.

Before TAURO, C.J., and SPALDING, CUTTER, REARDON and QUIRICO, JJ.

CUTTER, Justice.

An indictment (see G.L. c. 266, § 49) charged that Krasner on January 15, 1970, at Cambridge, 'did make an implement, to wit: a battering ram, adapted and designed for breaking open a room, and that such implement was used to break into the room of the President's office of Massachusetts Institute of Technology, to commit the crime of trespass knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ or allow the same to be used or employed for such purpose.' A Superior Court judge dismissed the indictment on the ground that it 'does not set out a crime.' The Commonwealth appealed under G.L. c. 278, § 28E (inserted by St.1967, c. 898, § 1).

General Laws c. 266, § 49 (as amended by St.1966, c. 269, § 1), provides: 'Whoever makes * * * or knowingly has in his possession, an engine, machine, tool or implement adapted and designed for cutting through, forcing or breaking open a building, room, vault, safe or other depository, in order to steal therefrom money or other property, or to commit any other crime, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use * * * or allow the same to be used * * * for such purpose * * * shall be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than * * * ($1,000) and imprisonment in jail for not more than * * * (2 1/2) years' (emphasis supplied). Trespass is made a criminal offence by G.L. c. 266, § 120 (as amended through St.1969, c. 463, § 2). ¹

The Commonwealth contends that the words 'or to commit any other crime' include the crime of trespass. The trial judge ruled that the statute was designed 'to prevent crimes of an acquisitive nature by punishing the making or possession of instruments designed and intended for use in the perpetration of such crimes.' In addition, he concluded that in view of the heavy penalty permitted under § 49, as contrasted with the relatively light penalty provided by § 120, it was unlikely that the Legislature intended to impose severe punishment under § 49 for conduct designed to assist commission of a misdemeanor, such as trespass.

1. Chapter 266, § 49, was first enacted by St.1853, c. 194, entitled, 'An Act concerning Implements of Burglary.' The statute appears to have originated (1853 House Journal (vol. 75), p. 629, April 11) in an order 'that the committee (on the judiciary) consider the expediency of providing for the punishment of persons making (b)urglar tools, or having such in their possession, with intent that they shall be used' (emphasis supplied). A bill, apparently in the form finally adopted, was reported from the Committee on the Judiciary and enacted in both Houses ² without any mention in the Journals of amendments to the bill. In the Journals (see fn. 2) the bill consistently was described as the bill 'Concerning Implements of Burglary,' the title appearing on the statute itself. The original House order (as contrasted with the entry in the Journal) describes it as designed to 'punish persons having burglar tools in their possession with intent to use them unlawfully' (emphasis supplied). ³

2. A majority of the court are of opinion that the 1853 act was not confined to making or possession of tools of burglary by a person intending to use them to commit theft or some other crime of an acquisitive nature. Because the language of the statute ('or to commit any other crime') is plain, it should be interpreted in accordance with the natural meaning of the words. See Johnson v. District Atty. for the No. Dist., 342 Mass. 212, 215, 172 N.E.2d 703. The words 'any other crime' must be given their reasonable and normal effect or they will have no effect at all. Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Authy., 352 Mass. 617, 618, 227 N.E.2d 357. This interpretation gains some support from the legislative history outlined above.

There is no occasion to resort to canons of construction or to the title of the act as an aid to interpretation. The words 'of burglary' in the 1853 title may be regarded as being merely descriptive of the prohibited tools and other instruments and not of their intended use. In any event the 'title to * * * (a) statute * * * cannot limit its operation to a field more narrow * * * than that established by the statute itself.' See Commonwealth v. Tilley, 306 Mass. 412, 417, 28 N.E.2d 245, 248.

The words describing the places to be entered, viz. 'building, room, vault, safe, or other depository' do not indicate to us any legislative purpose to limit, to theft and other acquisitive crimes, the criminal intent proscribed by the statute. The quoted language refers not only to places where goods susceptible of theft may be found or deposited but also to places (buildings and rooms) which humans ordinarily occupy. Nothing in the 1853 statute or its history suggests that the Legislature was not as concerned about use of an implement (e.g. a battering ram) to enter an inhabited room to commit a misdemeanor (or even a more serious depredation or offence, e.g. arson, rape, or assault) as it was with situations where the prospective entrant's intention was to steal. The statutory language was not restricted. We see no basis for the application of the principle of ejusdem generis. ⁴

One intending to break into a room merely to occupy the premises by a 'sit-in' to the discomfort or exclusion of the usual occupant, or for more violent purposes (e.g. to destroy evidence, or to engage in some form of 'protest'), is committing an offence within the term 'any other crime,' as fully as if a theft were his purpose. The perpetrator of such an offence, using or intending to use the tools of a burglar to commit it, must be held to know that he is violating a statute. The Legislature has said, we think plainly, that he may suffer the same consequences as those visited upon one who intends to be a burglar.

3. The trial judge suggested that the Legislature may have had no intent to impose the penalty stated in § 49 'for conduct designed to facilitate the commission of a petty misdemeanor such as trespass.' ⁵ This suggestion runs counter to the plain statutory language. The effence proscribed in effect is making or possession of burglar's instruments intended to be used for any crime. One fairly obvious evil of such an offence is the risk of violence implicit in the use of some of the tools and instrumentalities covered by § 49. The present case involves a battering ram designed to achieve an illegal entry. Certainly this was an implement 'adapted * * * for * * * breaking open a * * * room.' See Commonwealth v. Jones, 355 Mass. 170, 176--177, 243 N.E.2d 172. Making or possessing such an implement, with the intent to use it to invade the house, room, or office of a college president or any other citizen, or to violate his privacy, creates a risk of serious public disorder and is likely to lead to violent resistance. There is nothing improbable about a legislative determination that a serious penalty should be imposed for making or possessing instruments intended for use in committing either a then existing or future misdemeanor which may result in violence. ⁶

4. We assume that, in the past, § 49 and its predecessors have been employed largely to prosecute those making or possessing burglar's equipment with a view to theft of some type. See e.g. Commonwealth v. Anderson, 245 Mass. 177, 184--185, 139 N.E. 436; Commonwealth v. Tilley, 306 Mass. 412, 414--417, 28 N.E.2d 245; Cortellesso v. Commonwealth, 354 Mass. 514, 516, 522, 238 N.E.2d 516. That, however, does not mean that § 49 must be confined to such cases. As was said in the Tilley case (306 Mass. at pp. 415--416, 28 N.E.2d at p. 247), 'The object of a statute may be * * * so broad as to reach conditions fairly coming within its intent and sweep although such conditions did not come into existence until years after its enactment.' Now that a case, which involves no theft, has arisen within the scope of the words 'or to commit any other crime,' we think that § 49 must be applied as broadly as the natural import of the words indicate the application should be.

5. The form of the indictment is sufficient. It conforms substantially to the form provided by G.L. c. 277, § 79, for a prosecution under § 49. It has been reasonably adapted to substitute the offence of trespass for that of theft. See also G.L. c. 277, § 35A.

6. The order dismissing the indictment is reversed. The case is to stand for further proceedings in the Superior Court.

So ordered.

SPALDING, Justice (dissenting).

The court today remolds a statute, previously used only as a shield for the protection of the public against burglars, into a sword to be used against trespassers. In my view, neither the statutory language nor the legislative history supports this interpretation.

The majority rest their conclusion mainly on the premise that the meaning of the phrase 'or to commit any other crime' as used in the statute is 'plain' and therefore resort to canons of construction is unnecessary. I disagree. The doctrine of ejusdem generis has been consistently applied by this court in similar situations to interpret statutes, and I would apply it here to limit the statute's reach, as the trial judge ruled, to crimes of an acquisitive nature.

A number of examples are illustrative. In Commonwealth v. Dejardin, 126 Mass. 46, the statute in question made it a criminal offence to publish, sell or distribute 'any book, pamphlet, ballad, printed paper, or other thing * * * (which contains obscene matter)...