Com. v. Lewis

• Decision Date: 09 July 1963
• Citation: 191 N.E.2d 753,346 Mass. 373
• Parties: COMMONWEALTH v. Alfred H. LEWIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 753

191 N.E.2d 753

346 Mass. 373

COMMONWEALTH v. Alfred H. LEWIS.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 1, 1963.

Decided July 9, 1963.

Aaron K. Bikofsky, Ruth I. Abrams, Asst. Dist. Atty., for commonwealth.

Lawrence D. Shubow, Francis J. Vita, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ.

SPALDING, Justice.

The defendant was convicted on an indictment which charged that on August 28, 1961, 'in the daytime [he] did break and enter the * * * dwelling house of John Scanlon * * * with intent therein to commit larceny.' G.L. c. 266, § 18. He has appealed pursuant to G.L. c. 278, §§ 33A-33G, assigning as errors the denial of his motion for a directed verdict, various rulings on evidence, and other matters.

1. We are of opinion the defendant's motion for a directed verdict (first assignment of error) was properly denied. Mrs. Anastasia Scanlon, called by the Commonwealth, testified as follows: She first saw the defendant about noon on August 28, 1961, at her residence on North Avenue, Weston. She had been bathing her mother in a bathroom not far from the kitchen when she heard a noise, went into the kitchen, and saw the outer door of the kitchen, which led to a 'breezeway,' slowly opening. She slammed the door shut and then, looking up, saw the defendant standing in the breezeway. A conversation ensued, apparently conducted through the closed door, and the defendant, when asked by the witness what he wanted, asked her whether he could now the lawn. She inquired of the defendant whether he had any equipment with him and he replied that he had none. She suggested that he 'go next door,' and he left. The breezeway, which was between the kitchen and the garage, had a front door, and a rear door leading to a yard, in addition to the door to the kitchen. There was no door between the breezeway and the garage. The kitchen door and the front breezeway door had been locked just before the occurrence of the foregoing events. There was a bell outside the breezeway and another outside the kitchen. Both bells were in working order, but Mrs. Scanlon had not heard any bell ring about this time. Later that day she observed notches, which she had not seen earlier, near a lock; it is not clear whether this observation referred to the front breezeway door or to the kitchen door.

Emma Lee DeCrosta, who lived in the second house away from Mrs. Scanlon's, testified that she first saw the defendant running from Mrs. Scanlon's boundary line toward the street, and after attempting, without success, to 'thumb' a ride in a passing automobile, ran across the street and into the woods. She thereupon called the police.

Thomas Healey, a Weston police officer who lived near by, testified as follows: Around noontime on August 28, while off duty and at home, he saw the defendant walking fast across a ridge on the swampy side of an old pasture. The defendant, upon observing him, ran into the woods. Healey went into his house, put on his uniform and set out to find the defendant. He 'spotted' the defendant in a swamp. At that time the defendant was up to his knees in water and was pushing brush away. While he was so engaged, he was wearing gloves. A search of the defendant by Officer Healey revealed two small knives and $57. At the time of the search the defendant was not wearing gloves. The defendant was placed under arrest and taken to the police station. Later, Officer Healey returned to the swamp and found a pair of gloves in a 'round spot where [the defendant] had thrashed around.' The defendant, when asked about the knives, stated that he used them to manicure his fingernails. During the course of an interrogation by the police, the defendant stated that he went to Weston looking for 'lawn work,' although he had never done such work before and had no equipment; he admitted that he had been in the Seanlon house and stated that he went there looking for work.

On the basis of the foregoing testimony the jury could have found that the defendant entered the breezeway of the Scanlon house, went to the kitchen door, unlocked it with a knife and cause the door to open, and then, after a conversation with Mrs. Scanlon, left the premises. The question presented by the motion for a directed verdict is whether this evidence is sufficient to support a conviction under G.L. c. 266, § 18, which defines the offence: 'Whoever, in the night time, enters a dwelling house without breaking, or breaks and enters in the day time a building * * * with intent to commit a felony * * *.' The defendant's acts, committed in the daytime, required a breaking and an entry, as in the case of burglary at common law, ¹ to constitute the offence charged.

In this Commonwealth the opening of a closed but unlocked door or window is a breaking. Commonwealth v. Stephenson, 8 Pick. 354, 25 Mass. 354. But passing through an unobstructed entrance is not. Commonwealth v. Strupney, 105 Mass. 588, 590. See Commonwealth v. Trimmer, 1 Mass. 476. There was no evidence that would enable the jury, without resort to conjecture, to determine whether the defendant entered the breezeway through its front or rear door. Nor was there evidence that the rear door was closed shut either at that time or habitually. See Commonwealth v. Domanski, 332 Mass. 66, 76-77, 123 N.E.2d 368. Thus, the defendant's entry into the breezeway was not proved to have been effected or preceded by a breaking.

Even though the defendant, by whatever means, had entered the breezeway, without breaking, there would, nevertheless, be a breaking if he opened the kitchen door. Commonwealth v. Stephenson, 8 Pick. 354, 25 Mass. 354. State v. Scripture, 42 N.H. 485, 488. 4 Blackstone, Commentaries, p. 226. But, as in the case of burglary at common law, there must also be an entry. 'It is well settled that it is a sufficient entry 'when the thief breaketh the house, and his body, or any part thereof, as his foot or his arm, is within any part of the house.' 3 Inst. 64. 1 Hale P.C. 551. 2 East P.C. 490.' Commonwealth v. Glover, 111 Mass. 395, 402. We are of opinion that the jury could fairly have inferred that in the course of his opening the door some portion of the defendant's hand or arm came within the house. That was enough to constitute an entry.

But on an indictment drawn under G.L. c. 266, § 18, the Commonwealth must prove not only a breaking and entering but that it was done 'with intent to commit a felony.' 'When a person, by the use of force, enters a dwelling house in the middle of the night it may ordinarily be presumed, in the absence of evidence to the contrary, that his intent is to steal.' Commonwealth v. Ronchetti, 333 Mass. 78, 81, 128 N.E.2d 334, 336. Even though the breaking and entering occurred during the daytime, the intent to commit a felony could be inferred from the defendant's conduct (taking to the woods after being refused work) immediately thereafter. In this respect the case at bar closely resembles Commonwealth v. Shedd, 140 Mass. 451, 5 N.E. 254, where it was said that the jury 'might well have inferred, from the cirsumstances attending the act, and from the conduct and declarations of the defendant [flight and contradictory statements], that the act was done for the purpose of stealing from the building.' (140 Mass. p. 453, 5 N.E. p. 256.)

The defendant argues that the Commonwealth has not introduced and evidence to show that he had an intent to commit a larceny which amounted to a felony. A felonious larceny must involve property in excess of $100 in value. G.L. c. 266, § 30. If the jury believed that the defendant entered the Scanlon home to steal, they were not required to find that he intended to limit his stealing to property under $100 in value.

2. The second assignment of error asserts that 'The cumulative effect of tension between the Court and the defendant's trial counsel deprived the defendant of a fair trial.' ² In support of this assignment of error, the defendant refers to forty or more instances in the transcript. These must be read in context and it would greatly prolong this opinion to discuss them specifically. That there was tension between counsel and the court cannot be denied. From a careful reading of the transcript, we are of opinion that the tension of which the defendant complains was created by his counsel. ³ It is difficult, of course, to capture the atmosphere of a trial from the printed record. But even from the record certain conclusions are inescapable. Repeatedly in the course of the trial, the defendant's counsel ignored or flouted rulings of the judge. It thus became necessary for the judge to warn or rebuke counsel. At times counsel's defiance of the court's rulings went so far that the judge threatened to adjudge him in contempt. Some of these rebukes and warnings were not in the presence of the jury; others, unavoidably, were. Often during colloquies counsel did not 'maintain [the] respectful attitude' toward the court enjoined by the canons of the profession, and at times he was downright discourteous. ⁴ We are convinced that trial counsel embarked in a deliberate and studied attempt to antagonize the judge with the hope that he would be goaded into some action that would result either in a mistrial or a reversal. Conduct of this sort is not to be tolerated, and when it occurs it should be dealt with, as it was here, with firmness. A judge in this Commonwealth in order to discharge properly the function of his office must be 'the directing and controlling mind at the trial, and not a mere functionary to preserve order and lend ceremonial dignity to the proceedings.' Whitney v. Wellesley & Boston St. Ry., 197 Mass. 495, 502, 84 N.E. 95. Possibly some of the remarks made by the judge during the colloquies were not as judicial as they might have been. But, considering the provocation, we are of opinion that he showed great patience and restraint. It would be a...