Com. v. Tilley

• Decision Date: 29 June 1951
• Parties: COMMONWEALTH v. TILLEY. . Argued May 7-8, 1951
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 749

99 N.E.2d 749

327 Mass. 540

COMMONWEALTH v. TILLEY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 7-8, 1951.

Decided June 29, 1951.

E. M. Sullivan, Asst. Dist. Atty., Boston, for the Commonwealth.

J. H. Soble, Boston, for defendant.

Before QUA, C. J., and LUMMUS, WILKINS, SPALDING and WILLIAMS, JJ. SPALDING, Justice.

The indictment in this case alleged that on March 21, 1949, one Edward J. McAleney did break and enter in the night time 'a certain building * * * to wit: the shop of one Murry Spiegel * * * with intent * * * to commit larceny, and did then and there in said building steal 'certain described property belonging to Spiegel of the value of $2,285. The indictment then charged the defendant with being an accessory after the fact to 'the felony aforesaid.' See G.L. (Ter.Ed.) c. 266, § 16, as appearing in St. 1943, c. 343, § 1; c. 266, § 30, as appearing in St. 1945, c. 282, § 2; c. 274, § 4, as appearing in St. 1943, c. 488, § 1. The trial was before a judge of the Superior Court sitting without a jury. No evidence having been offered by the Commonwealth of breaking and entering in the night time by the principal, McAleney, the judge found the defendant guilty on so much of the indictment as charged him with being an accessory to larceny. The case comes here on the defendant's exceptions to the admission of certain evidence, to the denial of several motions, and to the judge's refusal to grant certain of the defendant's requests for rulings.

1. Before the trial the defendant filed a motion to dismiss the indictment. No grounds are set forth in the motion. Nor does the bill of exceptions reveal any grounds urged in support of it. The motion was rightly denied. The indictment follows the form prescribed by G.L. (Ter.Ed.) c. 277, § 79, as amended by St.1943, c. 488, § 2. The defendant does not challenge the form of the indictment; rather he argues that the proof does not support the charge. But that question is not open. The motion here was presented before any evidence was introduced. At that time the only question raised by the motion was the legal sufficiency of the indictment. See Commonwealth v. Pascone, 308 Mass. 591, 593.

2. At the close of the evidence the defendant presented motions for findings of not guilty. ¹ See Commonwealth v. Carter, 306 Mass. 141, 143, 27 N.E.2d 690; Commonwealth v. Jensky, 318 Mass. 350, 354, 61 N.E.2d 532. The motions and several requests for rulings, which were denied subject to the defendant's exceptions, raise the questions (1) that there was a fatal variance between the indictment and the proof, and (2) that the evidence failed to establish that the defendant was an accessory.

The defendant first argues, in effect, that the indictment does not allege that McAleney committed the offence of larceny but alleges that he committed the offence of breaking and entering in the night time with intent to commit larceny and larceny, and that the allegation that the defendant knew McAleney to have committed 'the felony aforesaid' has reference to McAleney's breaking and entering with intent to commit larceny and larceny but not to the substantive crime of larceny on his part. The defendant concedes that on a similar indictment McAleney might have been convicted solely of larceny but urges, without supporting authority, that a conviction of himself as accessory on proof that McAleney only committed larceny would amount to a variance between the indictment and the proof.

This contention rests upon a misconception of the legal effect of the allegations of the indictment. The allegations as to the acts of McAleney follow the common law form of indictment for burglary, see Commonwealth v. Hope, 22 Pick. 1, 4-6, by alleging that McAleney not only committed the substantive crime of breaking and entering in the night time with intent to commit a felony but also committed the separate substantive felony of larceny of property of the value of over $100. McAleney might have been convicted simply of larceny without proof of a breaking and entering because the indictment in legal effect charges a larceny as well as a breaking and entering. Kite v. Commonwealth, 11 Metc. 581, 583; Commonwealth v. Clifford, 254 Mass. 390, 392, 150 N.E. 181. Here the indictment fairly charges the defendant with being accessory after the fact not only to a felonious breaking and entering but also to a larceny amounting to a felony, and there is no fatal variance between the indictment and the proof merely because the Commonwealth offered no evidence in support of the allegations as to a breaking and entering by McAleney. Proof that the principal felon had committed the crime of larceny was sufficient. See State v. Burbage, 51 S.C. 284, 295, 28 S.E. 937.

The defendant next argues that the evidence was insufficient to warrant a finding of guilty of being an accessory after the fact to larceny. The following is a summary of the evidence most favorable to the prosecution. One Murry Spiegel was engaged in the business of selling hearing aids in Boston, and on August 18, 1948, sold the defendant such an instrument. Between that date and March 21, 1949, the defendant came to Spiegel's place of business several times to confer with him in regard to the transaction. In substance the defendant wanted Spiegel to take the instrument back and refund the money, which Spiegel refused to do. In December, 1948, the defendant brought the hearing aid to Spiegel, leaving it with him in order that he might sell it for the defendant's account. Sometime between 5:15 p. m. on March 21, 1949, and 9:00 a. m. on March 22, 1949, Spiegel's shop was broken into and some forty hearing aids and accompanying accessories were stolen, including the instrument belonging to the defendant. On the same day the defendant appeared at Spiegel's place of business and asked for his hearing aid. Spiegel said nothing of any loss but gave the defendant a different hearing aid which the latter took with him.

A few days later the defendant returned and informed Spiegel that the instrument which he had given him was not the one he had previously purchased. Spiegel then explained that there had been a 'robbery' and that the defendant's instrument was one of those stolen. The defendant asked what progress had been made by the police in the matter and 'offered to help and said he might be able to help locate the instruments, * * * [as] he had connections and could do things that the police could not do with regard to matters of this kind.' The defendant asked Spiegel whether he would be willing to pay $300 or $400 to the men who had the property, and Spiegel replied he would be. Three or four days later the defendant told Spiegel he had located the missing instruments, that they were all in good condition, and that it would cost Spiegel $500 to obtain their return. Spiegel said he was unwilling to pay until the numbers and condition of the instruments were checked. The defendant asked for, and Spiegel gave him, a list of the missing instruments so that the defendant might check them. Subsequently the defendant told Spiegel that the price had been reduced to $400.

On the right of April 6, 1949, in response to instructions by the defendant, Spiegel, under police observation, drove to an appointed rendezvous and met the defendant. From there the defendant drove Spiegel's automobile to the 'Commonwealth Avenue side of the reservoir.' The defendant said that was 'the meeting place'; that they would leave $400 of the defendant's money in the automobile; that they would take a walk; that 'the men' would leave the instruments in the automobile; and that, if upon their return the instruments were in the automobile, Spiegel might take them to his office, check them, and pay the defendant later. Accordingly, Spiegel and the defendant left the money in the automobile, remained away for five minutes, and returned to find the money but not the missing hearing aids. The defendant said that 'either Spiegel had been followed or he, the defendant, got his directions mixed up.' After driving around the reservoir 'looking for the other car,' the defendant left in order to use the telephone. He returned shortly, saying he would call Spiegel later when he had had time to find out what had happened. They then drove back to the original rendezvous.

Meanwhile, the police had observed an automobile following Spiegel's automobile away from the rendezvous where Spiegel had met the defendant. The police chased this automobile through the streets of Brookline and observed McAleney, the driver, throw out two bags which were subsequently found to contain the missing hearing aids and the check list Spiegel had given the defendant. McAleney was captured, and the defendant was arrested on his return to the rendezvous. When arrested, the defendant said, 'You see what happens when you try to do a favor.' He admitted he had known McAleney for ten years but said he did not know what the latter did for a living. There was evidence, the admissibility of which will be discussed later, that McAleney was the one who had originally stolen the hearing aids, and the case was tried on the footing that their value exceeded $100.

From the promptness with which the defendant appeared on the scene of the loss with his offer to help Spiegel secure the return of the missing instruments from 'the men who had them,' from the ease with which the defendant located the instruments, and from the fact that the defendant had obviously been in contact with his acquaintance McAleney who had the missing articles, as evidenced by the latter's possession of the check list given the defendant, we think the judge was warranted in finding that the defendant knew that McAleney was the person responsible for Spiegel's loss of the instruments. The evidence was sufficient to warrant a finding that a larceny of the instruments had been committed. Commonwealth v. Mason, 105 Mass. 163,...