Com. v. Perry
| Citation | 357 Mass. 149,256 N.E.2d 745 |
| Parties | COMMONWEALTH v. Charles E. PERRY. |
| Decision Date | 02 April 1970 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Reuben Goodman, Boston, Robert W. Banks and Stephen Axelrad, Boston, for defendant.
Newman A. Flanagan, Asst. Dist. Atty., Alvan Brody, and John M. Lynch, III, Boston, for the Commonwealth.
Before WILKINS, C.J., and SPALDING, KIRK, REARDON and QUIRICO, JJ.
The defendant was found guilty by a jury on two indictments returned on May 6, 1969, alleging crimes committed on November 6, 1968. Indictment No. 41,760 charges that the defendant being armed with a revolver assaulted George Salibe with intent to rob him. Indictment No. 41,761 charges that the defendant being armed with a revolver assaulted William Kempner with intent to rob him and did rob and steal a wallet and some money from his person. The case is before us on the defendant's exceptions to the trial judge's denial of his motions for directed verdicts of not guilty and his motion to suppress certain evidence.
At 9:30 P.M. on November 6, 1968, Kempner and Salibe were working as clerks at the Murray Kempner Company liquor store in the Dorchester district of Boston. Three men entered the store. One of the men had a gun, and they robbed Kempner of his wallet and some money and assaulted Salibe with the intent to rob him. Both clerks testified that the defendant was not one of the three robbers who entered the store, and that they had never seen him before.
The defendant did not testify. The only evidence relating to him was testimony from a police sergeant who said that he arrested him on March 26, 1969, that he 'gave the defendant the warnings required by the Miranda Case,' that 'he advised him of no other rights,' and that the defendant then made a statement to him as follows: On November 6, 1968, he was at the apartment of one Carlson on Beacon Street in Boston, and that one Wiggins and Gary Murphy were also there. Wiggins and Murphy talked about holding up a liquor store later that night. Murphy had formerly been a truck driver in the area of the Kempner liquor store and he suggested that they hold up that store. They all agreed and they went to that area by public transit. The defendant had formerly lived with a sister in that area and on occasions he had made purchases at the Kempner store. In view of this he feared that he would be recognized. He therefore arranged with the other three that after the holdup they would pick him up at the Y.M.C.A. which was a block away from the store. He waited at the Y.M.C.A. for them, but they did not come. He then went to his home in Boston by the public transit system. Wiggins came to his home about 11 P.M. that evening. They discussed the holdup and Wiggins said they got no money from the store. Wiggins told him that Murphy stayed near the door with a gun and Carlson went to the register looking for money. Two or three days later the defendant met Carlson who also told him they got no money.
The police sergeant testified that the Y.M.C.A. was about 400 feet from the entrance to the Kempner store. This was not a statement made by the defendant. There was no evidence whether the Y.M.C.A. was on the same street as the liquor store, or whether it was possible to see from one place to the other.
The motions for directed verdicts of not guilty raise the question whether there was sufficient evidence of the defendant's guilt to warrant submission of the cases to the jury. Although each indictment charges the defendant as a principal, he could be convicted on proof that he was an accesssory before the fact to the crimes charged. 1
There was evidence that the defendant knew the three persons who entered the liquor store and committed the robbery and assault, that he associated with them, and that he was in their company both before and after the robbery. But that, without more, is not enough to convict the defendant on either charge. There can be no finding of guilt by association. Commonwealth v. Fancy, 349 Mass. 196, 200, 207 N.E.2d 276.
There was also evidence that the defendant knew before the robbery and assault that Carlson, Wiggins and Murphy were going to the liquor store to committhose crimes, and that he knew later that they had committed them. But mere knowledge that a crime is to be committed, even when coupled with subsequent concealment of the completed crime, does not make one guilty as an accessory before the fact or as a principal to the crime...
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