Com. v. Owens

• Decision Date: 28 April 1966
• Citation: 350 Mass. 633,216 N.E.2d 411
• Parties: COMMONWEALTH v. Edward OWENS et al. 1 (and three companion cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 411

216 N.E.2d 411

350 Mass. 633

COMMONWEALTH v. Edward OWENS et al. ¹ (and three companion cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 4, 1966.

Decided April 28, 1966.

Chester C. Paris, Wakefield, for defendants.

Garrett H. Byrne, Dist. Atty., and John F. Mulhern, Asst. Dist. Atty., for the Commonwealth.

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

WILKINS, Chief Justice.

Of these four indictments, two against both defendants charge respectively assault by means of a dangerous weapon, and robbery, being armed and masked. A third charges both defendants and Gerald F. Mackin with conspiracy to rob and steal. A fourth charges the defendant Gerald Owens with unlawfully carrying on his person a revolver. The trial, which was subject to G.L. c. 278, §§ 33A--33G, resulted in convictions. The cases are here on the defendants' appeals, accompanied by assignments of error, summaries of the records, and a transcript of the evidence. Both defendants assign error in the denial of their motions to suppress evidence. The defendant Gerald Owens assigns error in the denial of his motions for directed verdicts.

1. There were two search warrants both dated March 25, 1963. The applications under that date were by one Connolly, a Boston police officer. In one he 'on oath informs the said Justices (of the Municipal Court of the South Boston District) that he believes that rifles, shotgun, pistol, revolver, implement or dangerous weapon used in the commission of a felony are concealed in the cellar, stories, outer buildings and barns of a certain building there situated and numbered One Thomas Park in * * * said City of Boston.'

The police officer's return also dated March 25, 1963, reported the entry and search of the described premises and the finding of '1 32 cal. nickle-plated revolver, serial #87216 and one 32 cal. Paramount pistol, ser 27412, one clip eight rounds of 32 cal. ammunition, 1 soft hat (Grey) 1 scally cap (grey) 1 lt. brn, top coat and two jackets' and the arrest of 'Edward Owens the person in whose possession the same were found.'

In the other search warrant the police officer 'on oath informs the said Court, That the following personal property, to wit: United States Currency, cloth bank bags of the property of Boston Consolidated Gas have within one days last past, by some person or persons unknown to the said complainant been feloniously taken, stolen and carried away out of the possession of the said Boston Consolidated Gas at Boston aforesaid; and that he believes that said property, or a part thereof, is concealed in each and every story and outer building and barns, of property located at number one (1) in Thomas Park, South Boston * * *.'

The police officer's return reported, 'I have made diligent search in the within named premises, and found 1 deposit bag, marked Shawmut bank--B--13, containing Approx. $3200.00 and arrested Edward Owens the person in whose possession said found.'

2. The defendants' first argument against the issuing of the search warrant is that an affidavit or application based only upon the 'belief' of the affiant is insufficient. The present warrants were issued on March 25, 1963, which was before June 23, 1964, the effective date of St.1964, c. 557, amending G.L. c. 276, and inserting new §§ 2A, 2B, and 2C. In Comonwealth v. Dias, 349 Mass. ---, ^a 211 N.E.2d 224, relief upon by the defendants, the search warrant was issued after that effective date. The amendment requires that a person seeking a search warrant shall give an affidavit which 'shall contain the facts, information, and circumstances upon which such person relies to establish sufficient grounds for the issuance of the warrant.' COMMONWEALTH V. MITCHELL, MASS., 215 N.E.2D 324.^B See Commonwealth v. Rossetti, 349 Mass. ---, ---, ^c 211 N.E.2d 658. Before the amendment under G.L. c. 276, § 1, ¹ it has been sufficient in this Commonwealth if the official issuing the warrant had before him 'basic facts sufficient to permit him to determine for himself whether probable cause existed.' Commonwealth v. Rossetti, 349 Mass. ---, ---, ^d 211 N.E.2d 658, 662. See Commonwealth v. Lepore, 349 Mass. 121, 123, 207 N.E.2d 26; Aguilar v. State of Texas, 378 U.S. 108, 109 n., 84 S.Ct. 1509, 12 L.Ed.2d 723.

There was sufficient information before the clerk to enable the determination of probable cause. At the hearing on the motion to suppress, Connolly testified that he had received information relative to the holdup that took place that morning at the gas company, and that the guns and money were at 1 Thomas Park; that he received information from Gerald Mackin that the Owens brothers, who lived there, were the persons who participated in the holdup with him; that he told the clerk that Mackin was a...