Commonwealth v. Anderson

• Decision Date: 23 May 1923
• Citation: 139 N.E. 436,245 Mass. 177
• Parties: COMMONWEALTH v. ANDERSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

245 Mass. 177

139 N.E. 436

COMMONWEALTH

v.ANDERSON.

Supreme Judicial Court of Massachusetts, Middlesex.

May 23, 1923.

Exceptions from Superior Court, Middlesex County; Franklin T. Hammond, Judge.

William Anderson was found guilty of having burglar's tools in his possession, and he brings exceptions. Exceptions sustained.

Defendant was also on trial for unlawfully carrying a revolver. He moved for a bill of particulars stating the kind, nature and description of each machine, tool and implement he was charged with possessing, and the way and manner in which each of them was designed and adapted for the specific purposes alleged. The motion was denied and defendant excepted.

The witness Goode was inspector of police in the city of Newton, and he testified that about 8:15 on the morning following defendant's arrest he had a conversation with defendant, after telling him he need not tell anything if he did not want to, but that anything he said would be for or against him in court. He testified that defendant said he came from St. Louis and that he was a bricklayer, asked what he was doing in the car, he said ‘he met some fellows' and ‘met three of them.’ Asked where he met them, he thought for a little while and then said he did not care to say. Asked by the witness how long ago he worked at bricklaying, he thought for quite a while and said some time ago. In answer to further questions he denied that he knew anything about the tools found in the automobile and said they were not his, and that the bag found in the automobile was not his, and that he had never gone by any other name. Defendant objected to this evidence and, after its admission, moved to strike it out on the ground that nothing said by defendant could be considered as an admission of guilt or of any fact or circumstances which could warrant an inference against him. After this witness had testified on cross-examination that the substance of defendant's story was that he was riding as a passenger in the automobile and did not know anything that was in it, or anything the other men were doing, he was asked, ‘You have not found a single thing in the way of evidence you can bring here to this jury to show that this is not true, Can you?’ and ‘In your investigation there is not a thing you can show this jury tending to disprove anything he said to you was untrue?’ The witness further testified that two police officers from Boston came to the police station that morning and one of them talked with defendant. He was then asked whether he had made any effort to get such police officers ‘here,’ whether he had talked to the district attorney relative to producing them, whether he had personally made any effort to get either of them there, whether he knew of any effort made by the commonwealth to get either of them, and whether he knew why they were not there. The court excluded such questions. The witness further testified that he had charge of the prosecution of the case in the lower court and was asked if he there accused one Boylan (the owner of the automobile) of having posession of the tools and answered, ‘Jointly with Anderson, yes.’ He was then shown the complaint in the lower court and asked whether he complained of them jointly and the court excluded the question. After some further questions along this line the following occurred:

‘Mr. Rowley: Shall I make an offer of proof if your honor please?

‘The Court: You cannot make an offer of proof, he is not your witness. You asked a question.

‘Mr. Rowley: I except to that ruling. And I offer to make an offer of proof.

‘The Court: I do not say you shall not make an offer of proof when it comes time to put in your case. I will exclude that question on cross-examination of this witness. That is all I do.

‘Mr. Rowley: Very well, at the close of the evidence I will make an offer of proof.’

Defendant requested rulings and instructions, among others:

(10) That as the case stood defendant was not a competent witness and no inference could be drawn against him because he had not testified as a witness in his own behalf.

(17) That if there were two uses which might be made of a machine or implement one of which was lawful and the other unlawful, in the absence of express intent, the law presumed that the person in possession thereof did not intend to make any unlawful use thereof.Arthur K. Reading, Dist. Atty., and Robert T. Bushnell, Asst. Dist. Atty., both of Boston, for the Commonwealth.

Clarence W. Rowley and Wm. F. McDonough, both of Boston, for defendant.

CARROLL, J.

The defendant was indicted for having in his possession burglar's tools ‘adapted and designed for cutting through, forcing and breaking open buildings, rooms, vaults, safes and other depositories, in order to steal therefrom such money and other property as might be found therein, * * * knowing said machines, tools and implements to be adapted and designed for the purpose aforesaid, and intending to use and employ them therefor.’

There was evidence that between 2 and 3 o'clock on the morning of February 17, 1921, the defendant, with three men, was in an automobile in West Newton, owned and driven by one Boylan. At the request of a police officer, Boylan drove to police headquarters. While the automobile was standing in front of the police station the defendant tried to jump from it and attempted to place a nickelplated revolver between the cushion and the rear seat. Two sticks of dynamite, two bottles of nitroglycerine, a quantity of wire, fuse, detonators, gloves, punches, drills, chisels, a bit stock, hammer, pocketknife, padlock, bunch of keys, two thumb screws, and a number of pistol cartridges were found in the automobile. The defendant was found guilty and the case is before us on the defendant's exceptions.

1. There was no error in overruling the defendant's motion to quash the indictment. It was correctly drawn according to the form prescribed in G. L. c. 277, § 79; the statute provides that the forms annexed shall be sufficient in cases to which they are applicable.

The defendant's motion for a statement of particulars was denied properly. G. L. c. 277, § 40, enacts that the court may order the prosecution to file a statement of such particulars as may be necessary to give the defendant and the court reasonable knowledge of the nature and grounds of the crime charged; and at the request of the defendant shall so order, if it cannot otherwise be fully, plainly, substantially and formally stated. The charge against the defendant was fully, plainly, substantially and formally set out in the indictment, and he was given reasonable notice of the nature and grounds thereof. He could not of right demand further specifications. Commonwealth v. King, 202 Mass. 379, 88 N. E. 454;Commonwealth v. Wood, 4 Gray, 11.

[3] There was no error in denying the defendant's motion to direct a verdict of not guilty. The defendant was found with three men in an automobile, at half past 2 o'clock in the morning. He attempted to jump from the machine. In the automobile were found the various instruments capable of use for committing the crime of burglary. The offense charged was the possession, with knowledge, of burglarious implements with the intent to use them for such purpose. The intent to use them to commit the crime of burglary was a question of fact for the jury, and there was evidence from which the jury could find that the defendant was guilty. Commonwealth v. Johnson, 199 Mass. 55, 85 N. E. 188;Commonwealth v. Conlin, 188 Mass. 282, 74 N. E. 351;Commonwealth v. Day, 138 Mass. 186.

[4] 2. Walter L. Wedger, who had been connected with the state police for 12 years as an expert on explosives and has an experience of 38 years as a chemist, has made many examinations of tools used in connection with dynamite and explosives; he was permitted to testify as an expert to the adaptability of the tools and implements in question for cutting through and breaking open buildings and other depositories. The witness was shown to be qualified; there was no error in the admission of his testimony. See Commonwealth v. Johnson, 199 Mass. 55, 85 N. E. 188.

[5] 3. The last-named witness was examined at length by the district attorney and the defendant's counsel as to his qualiflcations as an expert. In reply to a question of the court if the defendant objected to the qualification of the witness, counsel for the defendant said, ‘For one ground, yes; I have not heard of his having cut open a safe.’ He was asked on cross-examination if he had experience in the use of the tools in question in manual labor, and he replied that they were in use in general machine work. He was then asked if he had ever seen them used for any other purpose, and he replied in the negative. This question was put to him, ‘Have you ever used or seen used any such tools as are here for any other purpose than carpenter work or building up some machinery?’ The court then said, ‘You mean has he ever been a burglar?’ To this the defendant excepted and the witness answered, ‘I have never seen tools of these kinds used for any other purpose than carpenter work or wood work or for metal work.’ In view of the nature of the crossexamination of the witness, the attempt to show that his experience was limited to the use of such tools in general machine work and that they were not adapted for committing the crime of burglary, the defendant cannot complain of this question put by the presiding judge. Partelow v. Newton & Boston Street Railway, 196 Mass. 24, 81 N. E. 894. The defendant's counsel subsequently cross-examined the witness as to the uses of these tools and his experience with reference to them; the witness testified that they were adapted and designed for breaking into buildings and vaults. In our opinion there was no error of law in this question of the judge, and the defendant was not harmed by it.

[6][10] 4. The statements made by the defendant to Inspector Goode were...