Com. v. Maloney

• Decision Date: 02 March 1965
• Citation: 204 N.E.2d 891,348 Mass. 610
• Parties: COMMONWEALTH v. William P. MALONEY. COMMONWEALTH v. Raymond J. BELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 891

204 N.E.2d 891

348 Mass. 610

COMMONWEALTH v. William P. MALONEY.

COMMONWEALTH v. Raymond J. BELL.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 1, 1965.

Decided March 2, 1965.

Ronald J. Chisholm, Winchester, for defendants.

Aaron K. Bikofsky, Asst. Dist. Atty. (Ruth I. Abrams, Asst. Dist. Atty., with him), for the Commonwealth.

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

SPIEGEL, Justice.

Separate indictments charged the defendants with breaking and entering a dwelling house in the nighttime with intent to commit larceny therein, and for larceny of 'one watch, one jewel set and money.' ¹ Additional separate indictment charged them with attempted larceny of a motor vehicle. All of the crimes were alleged to have been committed on the same day. The cases were tried together by a jury, who returned a verdict of guilty upon all of the indictments. ² The defendants appealed and here present eleven assignments of error.

There was evidence as follows: One Dupois lived with his stepson, one Linscott, in a third floor apartment at 68 Pinckney Street in Somerville. On august 12, 1963, Dupois and Linscott met the defendants at the Silver Star Cafe, and invited them to the apartment. The defendants went there in the early morning of August 13 and left a few hours later. On August 16, at about 3 P.M., Dupois and Linscott departed for New Hampshire. Prior to leaving, they locked the apartment, except for one window which was left partly open for air. A screen was put in the window. '[I]mmediately outside' the window was a fire escape. When Dupois and Linscott returned at about 8:30 P.M. on August 18, they observed that their apartment had been ransacked. Various of their possessions were missing, including two indentical jewelry sets containing cuff links and tie clasps, a record player and records, a tool box, a camera and a 'jar of change' containing about $9, mostly in pennies.

In the intervening period, at 2:30 A.M. on August 17, a crash was heard on pinckney Street, and two men were seen near the automobile of one Agnes Mellor. '[O]ne of them * * * [kicked his] foot up and put it through' the front side window on the passenger's side (vent window), while the other 'stood right beside him.' The window was later found to be 'completely smashed.' When a witness 'ran out and yelled something,' the men began to flee, whereupon one of them, whom the witness recognized as the defendant Bell, stopped and 'was coming back * * * [with] a board in his hand.' When the witness's wife screamed, the men ran away. About five minutes later, a car occupied by two men raced along Pinckney Street chased by two police cruisers. The car crashed to a halt about two blocks from Agnes Mellor's automobile. The witness heard the crash, went to the site thereof, and saw the two men he had seen on Pinckney Street sitting in a police cruiser. Immediately after the car had crashed, the police had found the defendants alone in the car, the defendant Maloney 'behind the driver's seat and Bell * * * beside him.' A search of their respective persons revealed that Maloney was carrying $5 in pennies and a jewel case containing a tie clasp and cuff links. Bell was found in possession of a jewelry case identical to that found on Maloney.

The first assignment of error cites the trial judge's denial of the motion to sever the indictments as to the different offences for purposes of trial. There was no error. 'There is no difference in effect on the substantive rights of the defendant[s] and [their] just protection in every material particular between bringing [them] to trial upon several counts in one indictment or one complaint, on the one hand, and, on the other hand, bringing [them] to trial upon several indictments or complaints, provided in each instance the divers crimes thus charged are such that they might have been charged in separate counts in the same indictment or complaint, ³ and settled by a single trial without requiring the prosecutor to elect. * * * When no substantial rights of a defendant are at stake, the interest of the public requires that the guilt of one accused of crime shall be decided as expeditiously and inexpensively as is reasonably practicable. * * * It was said in * * * Commonwealth v. Rosenthal, 211 Mass. 50 [97 N.E. 609, 47 L.R.A.,N.S., 955] [that] 'No sound reason can be given why several indictments charging different crimes arising out of a single chain of circumstances should not be tried together. Where several offenses might have been joined in one indictment, and would be proved by substantially the same evidence, or evidence connected with a single line of conduct, and grow out of what is essentially one transaction, and where it does not appear that any real right of the defendant[s] has been jeopardized,'' separate trials are not required.

The defendants' second through fifth assignments of error relate to the admission in evidence of the two jewel sets, each consisting of a tie clasp and cuff links. They contend that the articles were not sufficiently indentified as stolen property. This contention ignores the evidence that the jewel sets were 'exactly alike,' that the exhibits were 'identical to' or 'similar to' the sets...