Commonwealth v. Bloomberg

• Decision Date: 07 February 1939
• Citation: 19 N.E.2d 62,302 Mass. 349
• Parties: COMMONWEALTH v. BLOOMBERG et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

302 Mass. 349

19 N.E.2d 62

COMMONWEALTH

v.BLOOMBERG et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 7, 1939.

Report from Superior Criminal Court, Suffolk County; Brogna, Judge.

James Bloomberg and Joseph Hoffman were convicted of being accessories before the fact to the burning of a building and the burning thereof with intent to defraud insurers, and the judge reported the cases to the Supreme Judicial Court for determination of certain questions.

Judgment on the verdicts.W. J. Sullivan, Asst. Dist. Atty., of Boston, for the commonwealth.

H. F. Callahan, of Boston, for defendant.

RONAN, Justice.

The defendant Bloomberg was acquitted upon an indictment charging him in the first count with burning a building in violation of G.L.(Ter.Ed.) c. 266, § 1, as amended by St.1932, c. 192, § 1, and in the second count with burning with intent to defraud the insurers in violation of G.L.(Ter.Ed.) c. 266, § 10, as amended by St.1932, c. 192, § 7. The defendant Hoffman was acquitted upon a similar indictment. Bloomberg was convicted on an indictment charging him as accessory before the fact, in the first count, to the burning of a building and, in the second count, to the burning of a building with intent to defraud the insurers. Hoffman was also convicted upon an indictment, charging him as accessory before the fact, in the first count, to the burning of the same building mentioned in the Bloomberg indictment and, in the second count, to the burning of the said building with intent to defraud the insurers. Both these defendants were acquitted upon an indictment charging them, with others, with a conspiracy to commit the identical felonies for which each has now been convicted as an accessory before the fact. The judge with the consent of the defendants reported the cases to this court, in accordance with G.L. (Ter.Ed.) c. 278, § 30, for determination of the question whether the indictments upon which the defendants were convicted set forth any offence and whether the verdicts of guilty as accessories before the fact were inconsistent with the verdicts of not guilty on the indictment charging conspiracy,both verdicts being based upon the same evidence.

The indictments upon which the defendants were found guilty were based upon G.L.(Ter.Ed.) c. 274, § 3, which provides that an accessory before the fact to the commission of a felony may be tried with the principal felon or after his conviction ‘or may be indicted and convicted of a substantive felony, whether the principal felon has or has not been convicted, or is or is not amenable to justice; and in the last mentioned case may be punished in the same manner as if convicted of being an accessory before the fact.’ It is the contention of the defendants that an accessory before the fact to the alleged offences can now be indicted, tried and convicted only under St.1932, c. 192, because, as they urge, the latter enactment purports to cover entirely and completely the punishment for arson and similar offences including the crime of being an accessory before the fact, and that it thereby effects a repeal of the pertinent sections of chapter 274, in so far as that chapter applies to the prosecution of such accessories.

St.1932, c. 192, which is entitled, ‘An Act relative to arson and certain related offences,’ provides for the prosecution and punishment of arson and certain related offences. The pertinent portion of the first section reads as follows: ‘Whoever wilfully and maliciously sets fire to, burns, or causes to be burned, or whoever aids, counsels or procures the burning of, a dwelling house, or a building adjoining or adjacent to a dwelling house, of a building by the burning whereof a dselling house is burned, whether such dwelling house or other building is the property of himself or another’ shall be punished by imprisonment in the State prison for not more than a certain term of years. The seventh section deals with the offence of setting fire for the purpose of defrauding the insurers and, in so far as now material, employs the same phraseology as to the persons who may be held amenable. Four other sections set forth different offences concerning the burning of property. Various statutory provisions then existing and contained in G.L.(Ter.Ed.) c. 266 are expressly repealed. This enactment, however, makes no mention of the repeal of any other statutes. The naming of those that were to be superseded is indicative of an intention not to interfere with the operation of other statutes. Garnett v. Bradley, 3 App.Cas. 944; Meese v. Northern Pacific Railway Co., 9 Cir., 211 F. 254;People v. Henwood, 123 Mich. 317, 82 N.W. 70;Wrightsman v. Gideon, 296 Mo. 214, 247 S.W. 135;State ex rel. City of Spokane v. DeGraff, 143 Wash. 326, 255 P. 371.

It is clear from an inspection of St.1932, c. 192, that the aim of the Legislature was to facilitate the prosecution by simplifying the definition of certain offences, to create new offences that may be more readily proved than similar but more serious crimes, to eliminate some of the technical attributes with which these crimes had been invested by the common law and to extend criminal liability to owners involved in the burning of their own property for a purpose other than to defraud the insurers. Commonwealth v. Mehales, 284 Mass. 412, 188 N.E. 261;Commonwealth v. Jaffas, 284 Mass. 417, 188 N.E. 263.

As there is no express repeal, it is contended that there is a repeal by implication. Such repeals have never been favored by our law. Unless the prior statute is so repugnant to and inconsistent with the later enactment that both cannot stand, then the former is not deemed to have been repealed. Commonwealth v. Flannelly, 15 Gray 195;Eaton, Crane & Pick Co. v. Commonwealth, 237 Mass. 523, 530, 130 N.E. 99;Cohen v. Price, 273 Mass. 303, 309, 173 N.E. 690;Burick v. Boston Elevated Railway Co., Mass., 200 N.E. 281.

The words ‘whoever aids, counsels or procures the burning’ as contained in St.1932, c. 192, might be descriptive only of a person who was present aiding and abetting the principal felon in the commission of the crime but who did not actually set the fire. Such a person would not be an accessory before the fact. In order to convict of that offence it is necessary to prove that a defendant incited, counselled or procured another to commit a felony and that at the time of its commission the defendant was absent, or, if he was present, that he was not then assisting in the perpetration of the crime. Commonwealth v. Merrick, 255 Mass. 510, 152 N.E. 377;Commonwealth v. DiStasio, Mass., 8 N.E.2d 923, 113 A.L.R. 1133. If the statute is so construed as to include only those who are usually deemed principals, then we have the ordinary situation where the principal felon is convicted for a violation of a particular statute and the accessory before the fact is convicted in accordance with the provisions of G.L.(Ter.Ed.) c. 274, § 3, as illustrated by Commonwealth v. Asherowski, 196 Mass. 342, 82 N.E. 13;Commonwealth v. Kaplan, 238 Mass. 250, 130 N.E. 485.

The defendants contend that the statute by virtue of the words‘ whoever aids, counsels or procures' includes accessories before the fact. See Commonwealth v. Knapp, 9 Pick. 496, 514,20 Am.Dec. 491. We need not decide this point because, if we assume that the defendants are right, it does not follow that the indictments are void. G.L.(Ter.Ed.) c. 274, § 3, was enacted more than a century ago for the purpose of overriding the common law restriction inhibiting the conviction of an accessory before the fact until after a conviction of the principal felon. Being an accessory before the fact was itself made a substantive felony. It was necessary in proving this new statutory offence to prove the guilt of the principal but it was no longer necessary to show his conviction. The offence of the principal and that of the accessory have become distinct statutory crimes. Commonwealth v. DiStasio, Mass., 8 N.E.2d 923, 113 A.L.R. 1133, and cases cited. The same act may constitute violations of different statutes. Commonwealth v. Fontain, 127 Mass. 452;Commonwealth v. Hanley, 140 Mass. 457, 5 N.E. 468.Chapter 274, § 3, furnished an alternate method for the prosecution of the accessory, who could be tried with the principal felon, or after his conviction, or tried alone upon the substantive felony created by that statute. Such a statute must be held to be one of general application consistent with the purpose for its enactment and the intent of the Legislature as manifested by its language. Its object was to furnish a method for the prosecution of any accessory before the fact, irrespective of the nature of the principal felony. ‘Exceptions cannot readily be read into a statute enacted with that design.’ Boston Safe Deposit & Trust Co. v. Commissioner of Corporations & Taxation, 273 Mass. 187, 194, 174 N.E. 109, 111. The sweep of section 3 has been defined: ‘It is undoubtedly specially designed for the case of accessories to felonies before the fact for which no other provision is...