Com. v. Smith

• Decision Date: 07 March 1961
• Citation: 172 N.E.2d 597,342 Mass. 180
• Parties: COMMONWEALTH v. Francis J. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 597

172 N.E.2d 597

342 Mass. 180

COMMONWEALTH v. Francis J. SMITH.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 3, 1961.

Decided March 7, 1961.

Benjamin L. Goldenberg, Boston (Joseph Sax, Boston, with him), for defendant.

John T. McNaughton, Cambridge (John J. Droney, Dist. Atty., Cambridge, with him), for the Commonwealth

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

SPALDING, Justice.

Under an indictment charging malicious explosion (G.L. c. 266, § 101) the defendant was found guilty. The explosion, which damaged several rooms on the first floor of the dwelling of Everett J. Bixby in Woburn, occurred about 12:45 A.M. on May 13, 1957. The case comes here on a bill of exceptions, which presents for decision the correctness of several rulings of the trial judge.

1. The defendant contends that the judge erred in denying his motion for a directed verdict. More specifically, he argues that the evidence failed as matter of law to establish beyond a reasonable doubt that he was the person who caused the explosion. There was evidence of the following: In the early morning hours of May 13, 1957, two police officers were sitting in a cruiser on the street in front of the Bixby house, about 450 feet away. At about 12:30 or 12:35 A.M. a man appeared on the side of the street nearest the Bixbys', about 210 to 250 feet away. He started to cross the street, and when he was half way across, the cruiser's headlights were turned on. He then ran the rest of the way across the street and disappeared into a large wooded area on the other side. He was hatless and was wearing a light sports jacket and dark pants. Shortly thereafter, the explosion took place in the Bixby house. An eighty inch fuse, which was found below the back piazza of the house, would have taken from four to five minutes to burn. Two officers searched the woods into which the unidentified man disappeared, but they could find no one. At about 2:30 A.M. two officers apprehended the defendant at an outdoor telephone booth about four tenths of a mile from the Bixby house. He was wearing a light sports jacket and dark pants and was hatless. His pants were 'wringing wet from ankles to thigh' and his shoes were 'soaking wet.' It had not rained for twelve hours, although prior to that it had rained for three days. In answer to questions put by the officers, the defendant told them 'that he was a fight manager and * * * was out doing road work.' He said that he did not know where he was, but that he had been running from the vicinity of the Stoneham Zoo, about five miles away. Later, in the police station, the defendant accounted for his presence in the woods by stating that he was 'helping out the boys' (whatever that may mean).

The defendant at that time lived on Queensberry Street in Boston. At the trial he explained that he had ridden from Boston to Woburn with a friend Louis Venios, so that Venios could borrow an automobile, and admitted that his statement to the officers that he became wet 'as a result of the road work' was false. He testified that his clothes actually became wet earlier in the evening while he was wringing out clothes and when he stepped in puddles outside his apartment.

The scent from the defendant's clothing was given to bloodhounds, but the results were negative. On the end of the fuse that was found at the scene of the explosion was a black alkaline residue, containing potassium nitrates and nitrites and antimony. The black substance was a 'powder residue derived from the burning of the fuse.' Nitrites were also found on a blackened area burned on the defendant's right shoe and on three separate areas of the defendant's jacket. '[N]itrite is an unusual substance; * * * it is not a common ingredient found in * * * or on shoes and is not an ingredient of clothing.' The defendant's jacket was torn and he explained to the officers that this occurred in a machine shop 'where he worked a couple of day[s] previous.' At the trial the defendant admitted that he did not work in a machine shop.

The defendant argues that the evidence, although it might case suspicion on him, fell far short of establishing his guilt beyond a reasonable doubt. It is true, as the defendant argues, that the evidence is mainly circumstantial. The principles governing such evidence are so familiar that they need not be restated, and we shall be guided by them. See Commonwealth v. Webster, 5 Cush. 295, 319; Commonwealth v. Russ, 232 Mass. 58, 68, 122 N.E. 176; Commonwealth v. O'Brien, 305 Mass. 393, 400-401, 26 N.E.2d 235; Commonwealth v. Shea, 324 Mass. 710, 713-714, 88 N.E.2d 645. We also have in mind the settled principle that '[w]hen the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof.' Commonwealth v. Carter, 306 Mass. 141, 147, 27 N.E.2d 690, 694. Commonwealth v. O'Brien, 305 Mass. 393, 399-401, 26 N.E.2d 235, and cases cited.

We are of opinion, nevertheless, that there was a case for the jury. It is significant that the defendant was found only four tenths of a mile from the Bixby house about two hours after the explosion; that he was dressed in the same manner as the person who was observed leaving the area of the Bixby house just before the explosion; that his pants and shoes were wet, although it had not rained for twelve hours; that he gave a highly unconvincing explanation for his presence at the telephone booth at an unusual hour and at a considerable distance from his home; that nitrites (which are uncommon) were found on the fuse and on his clothes and right shoe; and that the nitrites on his shoe were on a burned area.

The defendant in effect admitted on the stand that his explanation ('road work') for his presence in the vicinity of the Bixby house was false. This was some evidence of guilt. Commonwealth v. Alba, 271 Mass. 333, 338, 171 N.E. 458; Commonwealth v. Bonomi, 335 Mass. 327, 348, 140 N.E.2d 140. His testimony accounting for his wet clothes could have been found to be inconsistent with explanations given on the morning of the explosion and could have been disbelieved. 'If it were found that [his] testimony was intentionally false in material particulars, it would be evidence of guilt.' Commonwealth v. Sokorelis, 254 Mass. 454, 457, 150 N.E. 197, 199. See D'Arcangelo v. Tartar, 265 Mass. 350, 352, 164 N.E. 87.

It may very well be that any of the foregoing factors alone would be insufficient to sustain the Commonwealth's case. For example, the light jacket, dark pants, no hat description could apply to many men. The defendant's clothes could have become wet in other ways than by his running through the woods. The nitrites could have been transferred to his clothes and shoe by someone who had handled the fuse or the debris after the explosion, or they could have come from a source entirely unrelated to the explosion. But when all these factors are considered together, coupled with the admissions by conduct ¹ (false statements to the officers and testimony which could have been found to be false), the jury warrantably could have found that the person who caused the explosion was the defendant. See Commonwealth v. Oates, 327 Mass. 497, 498-499, 99 N.E.2d 460; Commonwealth v. Bonomi, 335 Mass. 327, 355-356, 140 N.E.2d 140. Compare Commonwealth v. Shea, 324 Mass. 710, 713-714, 88 N.E.2d 645. The defendant's alibi rested on the credibility of witnesses, who could have been disbelieved by a jury, and the defendant concedes that it was not necessary for a motive to be shown. Commonwealth v. Simpson, 300 Mass. 45, 56, 13 N.E.2d 939. It was thus not error to refuse to direct a verdict for the defendant.

2. The defendant purportedly excepted to a remark of the judge made in the course of the direct examination of one John O'Neil, a Boston police officer who was an alibi witness for the defence. The remark occurred in these circumstances.

'Q. (by * * * [counsel for the defendant]) Incidentally, have you ever seen me before? A. No, I haven't.

'Q. Have I ever talked to you about this case?

'The judge: Now what do you mean by 'before'?

'Counsel for the defendant: Before this case.

'The judge: Well, I don't know now what you mean by 'before.' I only interrupted because I saw you with * * * [counsel for the defendant] and this other man talking outside from my lobby. I couldn't help----

'Counsel for the defendant: This is correct. I went downstairs----

'The judge: When did you last see * * * [counsel for the defendant], is what he's asked you. Have you ever seen him before?

'The witness: No, sir. Outside the court house on the way----

'The judge: That's the first time you ever saw him?

'The witness: Yes, sir.

'Counsel for the defendant: I'm going to take exception to that remark by your Honor with reference to that, and I am going to ask that exception be noted.

'The judge: All right.'

The defendant argues that the remark of the judge about having seen the witness talking with counsel for the defence was tantamount to testimony by the judge tending to contradict the testimony of the witness. We assume that a judge may not contribute any testimony in proceedings before him. See Wigmore on Evidence (3d ed.) §§ 1805, 1909. But that question is not presented. After the alleged contradiction by the judge, counsel for the defendant in fact agreed with the judge and did not take any exception until two more questions had been asked and answered. These questions were designed to clarify a question originally asked by the defendant's counsel and were proper. It is by no means clear what counsel was taking exception to when he stated at that point 'I'm going to take exception to that remark.' If he intended to object to the earlier remark about what the judge saw, he should have done so when it was made. See Commonwealth v. Theberge, 330 Mass. 520, 527, 115 N.E.2d 719. No prejudicial error has been shown.

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