Com. v. Reynolds

• Decision Date: 25 November 1958
• Citation: 154 N.E.2d 130,338 Mass. 130
• Parties: COMMONWEALTH v. Edward A. REYNOLDS and six companion cases.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 130

154 N.E.2d 130

338 Mass. 130

COMMONWEALTH v. Edward A. REYNOLDS and six companion cases.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 6, 1958.

Decided Nov. 25, 1958.

James D. St. Clair and Blair L. Perry, Boston, for defendant.

Francis J. Hickey, Asst. Dist. Atty., Boston, Anthony J. Young, South Boston, and Donald P. Brennan, Roxbury, for the Commonwealth.

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and CUTTER, JJ.

RONAN, Justice.

These are appeals from convictions on indictments naming one Valcourt as principal and Reynolds as accessory before the fact to murder in the second degree of three persons resulting from a fire set by Valcourt as principal to a dwelling house in which they were tenants; with being an accessory before the fact to burning a dwelling house; with conspiracy to burn a building with intent to injure the insurers; with conspiracy to burn a dwelling house; and with being an accessory before the fact to the burning of a building with intent to injure the insurers. The convictions of Valcourt were affirmed and the convictions of Reynolds were reversed after a previous trial. Commonwealth v. Valcourt, 333 Mass. 706, 133 N.E.2d 217. A trial against Reynolds alone followed and the cases are here upon an assignment of errors alleged to have been committed at his second trial.

At about 6:30 on the morning of June 24, 1953, fire destroyed a house containing twelve apartments at 40 Isabella Street, Boston, causing the death of three of the tenants. On that day legal title to the property was in Valcourt. It is not disputed that Valcourt held the legal title to the property as a straw for Reynolds. Reynolds had financial interests in several parcels of real estate. He was both a real estate operator and a licensed insurance agent. Valcourt had been in Reynold's employ for about eight years as a handy man and had been, prior to an accident he suffered in the autumn of 1952, janitor at another property for Reynolds. At the time of the fire, Valcourt was out of work and on welfare. He was then living with the janitor upon this other property.

The second assignment of error (exception 16) relates to the exclusion of testimony of one Shuman as to the cost of taking down the burned building, and the third assignment (exception 17) relates to the exclusion of testimony of one Martin as to the cost of levelling the building lot. The evidence was offered in rebuttal of evidence that the defendant's financial situation was precarious and to show that, in some respects, it would be disadvantageous to the defendant to defraud the insurers. The evidence, if believed, would establish items of cost that would be incurred by the defendant in the event of a fire. The precarious financial condition of the defendant could be shown by the Commonwealth as 'a motive for the crime.' Commonwealth v. Valcourt, 333 Mass. 706, 719, 133 N.E.2d 217, 226. That decision, however, indicates that 'when such evidence had been introduced the defendant had the right to rebut it.' Even though there is no evidence that the defendant intended to rebuild the destroyed property, the evidence of costs which the defendant would be likely to incur in the event of a fire was admissible to rebut the testimony as to motive.

Assignments 4 and 5 (exceptions 25 and 26) are to the exclusion of evidence that the defendant's wife had a deposit of $2,480.21 and his sister a deposit of $1,415.40 in certain banks. If the deposits were available to the defendant, he should have been permitted to show them to rebut the evidence of motive introduced by the Commonwealth. Commonwealth v. Haddad, 250 Mass. 391, 145 N.E. 561. Commonwealth v. Cooper, 264 Mass. 368, 162 N.E. 729. It would not be illogical to assume that the money would be available to Reynolds.

Assignment 10 (exception 28) is to the exclusion of testimony of one Crowley, a police officer assigned to the State fire marshal, who investigated the fire and was of the opinion that the fire was not of incendiary origin. Gechijian v. Richmond Ins. Co., 305 Mass. 132, 142, 25 N.E.2d 191. The evidence should have been admitted.

Assignment 7 (exception 19) is based upon the exclusion of testimony of the defendant as to his motive in telephoning a fire adjuster immediately upon his getting word of the fire. The evidence should have been admitted as it would have tended to explain away the inference from the immediacy of his call that he was primarily interested in the insurance money.

These rulings upon evidence appear to have been prejudicial to the defendant.

The defendant has assigned as error (assignment 11) the refusal of the trial judge to grant motions to direct verdicts of not guilty. The relevant evidence on this issue was the following. On June 25, 1953, the day following the fire, Valcourt was taken to police headquarters and interrogated concerning the fire. Reynolds was sent for and was confronted by Valcourt. Shorthand notes were taken by one Shanahan, the police stenographer, of extended questioning of Valcourt in Reynolds' presence, during which Valcourt made statements that Reynolds was to pay him $100 if he would set the fire and that he, Valcourt, did set the fire. Reynolds testified that he replied that he emphatically denied the statement by Valcourt. There was a conflict in the evidence whether Reynolds made such a denial. The stenographer was permitted to read his notes of Valcourt's statement without objection or limitation of the applicability of the evidence in any way and the police officer in charge was permitted without objection or limitation of his testimony to confirm the stenographer's account.

In the first trial against both Valcourt and Reynolds, there was proof of Valcourt's guilt and also evidence, although somewhat thin, that Reynolds was an accessory. In this second trial against Reynolds alone, and in order to convict him, it was necessary to prove beyond a reasonable doubt that Valcourt, the alleged principal, was guilty of setting the fire. Commonwealth v. Bloomberg, 302 Mass. 349, 353, 19 N.E.2d 62. Commonwealth v. DiStasio, 298 Mass. 562, 566, 11 N.E.2d 799. Valcourt did not testify at the second trial although he was led into the court room and identified by various persons. This, of course, did not prove that Valcourt committed the principal offences. The mere fact that Valcourt had been previously convicted for these crimes was not proof of this in the instant trial. See Commonwealth v. DiStasio, 298 Mass. 562, 566, 11 N.E.2d 799; Commonwealth v. Tilley, 327 Mass. 540, 99 N.E.2d 749.

We assume that the stenographer's testimony was admissible against Reynolds, who was not then under arrest, as tending to prove that Reynolds made an implied admission of Reynolds' own conduct charged by Valcourt. See Commonwealth v. Valcourt, 333 Mass. 706, 716, 133 N.E.2d 217. There was conflicting testimony whether Reynolds denied the charges against him or made an equivocal answer when called upon to explain them. Reynolds' answers, if found to be equivocal or evasive, could be viewed as admissions, Commonwealth v. Madeiros, 255 Mass. 304, 313, 151 N.E. 297, 47 A.L.R. 962, Commonwealth v. Hebert, 264 Mass. 571, 578, 163 N.E. 189, Commonwealth v. Graham, 279 Mass. 466, 468, 181 N.E. 506, in which case the changes would be admissible solely for the limited purpose of laying a foundation for the replies. Commonwealth v. Kenney, 12 Metc. 235, 237. There could be, however, no implied admission by Reynolds of Valcourt's statements about the latter's own conduct of which it was not shown Reynolds had direct knowledge. Valcourt's statements about his own conduct were as against Reynolds inadmissible hearsay and, upon his request seasonably made, should have been excluded by appropriate instructions from consideration upon the issue whether Valcourt had committed the principal crime. Commonwealth v. Kenney, 12 Metc. 235, 237; Commonwealth v. Boris, 317 Mass. 309, 317-318, 58 N.E.2d 8; Refrigeration Discount Corporation v. Catino, 330...