Commonwealth v. Bader
| Decision Date | 26 March 1934 |
| Citation | 189 N.E. 590,285 Mass. 574 |
| Parties | COMMONWEALTH v. BADER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Criminal Court, Middlesex County; Beaudreau, Judge.
Thomas Bader was convicted of aiding, counseling, and procuring the burning of his own building willfully and with intent to defraud insurers, and he appeals with assignments of error.
Affirmed.
H. W. Sullivan, of Boston, for appellant.
Warren L. Bishop, Dist. Atty., of Wayland, and Paul Foisy, Asst. Dist. Atty., of Lowell, for the Commonwealth.
The defendant was convicted of aiding, counselling and procuring the burning of his own building, wilfully and with intent to defraud insurers, in violation of G. L. (Ter. Ed.) c. 266, § 10, as redrafted by St. 1932, c. 192, § 7. See Commonwealth v. Jaffas (Mass.) 188 N. E. 263. The case comes here by appeal, with a summary of the record, a transcript of the evidence, and an assignment of errors, under G. L. (Ter. Ed.) c. 278, §§ 33 A-33 G. Commonwealth v. McDonald, 264 Mass. 324, 162 N. E. 401.
The principal errors assigned relate to the refusal of the trial judge to direct a verdict of not guilty (1) on the opening of the district attorney, (2) at the close of the evidence for the commonwealth, and (3) at the close of all the evidence. Only the last of these three points need be considered. Until all the evidence has been closed on both sides, a defendant in a civil or criminal case cannot require the judge to rule upon the legal sufficiency of the evidence already introduced to support a verdict against him. The introduction of further evidence by either party might supply anything lacking before, and at any rate would present a new question. Whether the earlier evidence was sufficient or not would then be of no consequence. A judge is not bound to rule upon what is likely to become a moot question. Goodell v. Sviokcla, 262 Mass. 317, 318, 159 N. E. 728;Karpowicz v. Manasas, 275 Mass. 413, 176 N. E. 497; Meeney v. Doyle, 276 Mass. 218, 221, 177 N. E. 6;Household Engineers, Inc., v. Ryder, 277 Mass. 523, 178 N. E. 824;Hall v. Smith, 283 Mass. 166, 167, 185 N. E. 850. See, also, Barnes v. Berkshire Street Railway Co., 281 Mass. 47, 50, 51, 183 N. E. 416.
The following summarizes the evidence tending to show guilt. On July 15, 1932, the defendant was a painter, earning from $10 to $20 a week, and had no money or property. Nevertheless, through one Elias, a friend who was a real estate broker, he took title to the house in question on that day from a savings bank which held it by virtue of a foreclosure. He paid nothing, and the bank took back a mortgage for the entire price of $6,000. He assumed the taxes, which were payable in October, and agreed to pay the interest and $50 on the principal every three months, the first payment to be made October 1, 1932. He took over from the bank fire insurance policies to the amount of $6,500, of which $2,000 was to expire in October. Instead of waiting for the expiration, on August 12, 1932, he procured through Elias an additional fire insurance policy of $5,000, paying nothing on the premium. At the time he took title, a tenant on the first floor was paying $25 rent a month, and a tenant on the second floor was paying nothing. Both tenants soon moved out, and the house remained vacant. When the defendant last visited the house, he left the doors locked. No one else had a key. He had no enemies, and no one had threatened him.
On the morning of September 17, 1932, at about half past three, a fire broke out in the house, and the firemen responded to an alarm. When they arrived, the fire had broken through the locked front door. After the fire was put out, they discovered two unconnected holes burned through the floor of the front hall, about five feet apart, from which the fire had burned up through the second floor. The front and rear doors were locked, but the side door was unlocked. There was no trace of oil, gasoline or other incendiary material or device. If any had been used, it must have been destroyed in the fire. Electric wires were eliminated as a possible cause, for the electricity had been wholly shut off from the house. There was no evidence that the defendant was about the premises on the night of the fire, and the...
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