Commonwealth v. Cavedon

• Decision Date: 25 October 1938
• Citation: 301 Mass. 307,17 N.E.2d 183
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. EMIL CAVEDON & another.

301 Mass. 307

17 N.E.2d 183

COMMONWEALTH v. EMIL CAVEDON & another.

Supreme Judicial Court of Massachusetts, Worcester.

October 25, 1938

September 26, 1938.

Present: FIELD, C.

J., DONAHUE, QUA COX, & RONAN, JJ.

Arson. Evidence Presumptions and burden of proof, Inferences.

Evidence, at the trial of indictments against two for arson, that the property was insured, though not overinsured; that the defendants were pecuniarily interested in a business conducted thereon which was in financial difficulties at the time of the fire; that both defendants with an accomplice were alone on the premises at the time of a fire of incendiary origin, had opportunity to set it, and, although told of it, gave no alarm and made no attempt to put it out; that both made intentionally false statements respecting their conduct at the fire; and that they did not deny charges by innuendo made to them by one of their employees, warranted a finding of guilty beyond a reasonable doubt although the inference leading to such finding was not unescapable or necessary.

INDICTMENT, found and returned on January 20, 1938, against Emil and Raymond R Cavedon and Ligor Toli.

All defendants were found guilty after a trial before Burns, J. Emil and Raymond R. Cavedon appealed with assignments of error.

E. G. Norman, (C.

T. Tatman with him,) for the defendants.

A. A. Gelinas, Assistant District Attorney, for the Commonwealth.

COX, J. The defendants, together with one Ligor Toli, were convicted upon an indictment which charged them in two counts with (1) wilfully and maliciously burning the shop of Alexander Cavedon and (2) wilfully and maliciously burning the goods and chattels of the Cavedon Spinning Company. G. L. (Ter Ed.) c. 266, Section 2, as amended by St. 1932, c. 192, Section 2. G. L. (Ter. Ed.) c. 266, Section 5, as amended by St. 1932, c. 192, Section 4. The case comes here with a summary of the record, a transcript of the evidence, and an assignment of errors under G. L. (Ter. Ed.) c. 278, Sections 33A-33G. Commonwealth v. McDonald, 264 Mass. 324 . The defendants admit that the fire was of incendiary origin and that they had the opportunity to set it. The assignment of error relative to action of the trial judge upon the motion for new trial was waived at the argument, so that the only question for consideration is whether the jury was warranted in finding the defendants guilty. The defendants have not argued that, if the evidence warranted the finding that the fire was set by them or either of them, it did not also warrant a finding that this was done wilfully and maliciously. See Commonwealth v. Brooks, 9 Gray, 299; Commonwealth v. Goodwin, 122 Mass. 19 , 35; McGurk v. Cronenwett, 199 Mass. 457 .

The jury could have found the following facts: The building in which the fire occurred was owned by Alexander

Cavedon, the father of the defendants, and was occupied by the Cavedon Spinning Company, which manufactured yarns. The father owned two hundred forty-seven shares of the company's stock and the other three shares were owned by his three sons, including the defendants. The defendant Emil Cavedon was an officer of the corporation and in charge of the plant at the time of the fire. The defendant Raymond R. Cavedon did some of the office work, was in charge of the finishing room, and solicited orders. Both drew salaries from the company. For some weeks prior to the fire, which occurred on Saturday, December 18, 1937, with the exception of making some sample lots of yarn, very little work had been done. After the fire, Emil Cavedon stated that "We were on the rocks." A day or two before the fire, Emil Cavedon told the boss carder and the overseer of spinning to get their departments ready to operate on the following Monday, December 20, as they had orders to fill which would require two days' work. Preparations were made accordingly on Saturday, the eighteenth; the carding and spinning machines were operated and left in condition to continue production on Monday. The rooms were swept and everything was left in order when the last employee in these two rooms left the factory at 4:30 o'clock in the afternoon. Emil Cavedon and Toli were in the factory during the entire afternoon and until after the fire was discovered by outsiders. Raymond R. Cavedon left the factory about 3:30 o'clock in the afternoon and went to West Warren, twenty-eight miles from Worcester, where he delivered some sample yarn and then returned to Worcester, although his home was in Woonsocket, Rhode Island. He went to the factory and was there at the time the fire was discovered by outsiders.

Between 6:45 and 7:00 o'clock in the evening of December 18, evidences of three fires were discovered in the spinning room, which was on the second floor of the building, by some girls who lived in the neighborhood. One of these girls caused a telephone message that there was a fire to be sent to the fire department. The message was recorded as having been received at 7:15 o'clock. Another of these girls, Mary Armenti, ran some distance to a fire alarm box and attempted to ring in an alarm. She then returned to the factory and, seeing a light in the office, which was on the street floor, ran up the outside steps and tried the door, but it did not "give." She shouted "Fire" twice, as loud as she could. The main entrance to the building is from Nebraska Street at the corner of Winona Street, where there are two out-swinging doors with glass panels. Directly opposite these doors is a ground glass partition, a part of which is clear, permitting vision from the outer steps into the office. To the right as one enters through the outside doors, is a rail with a swinging bar, which opens into a corridor, with the stairs to the second floor going up on the right. Just inside the rail to the left is the door to the office. The office is thirty-four feet wide on its front on Winona Street, and thirty-two feet deep. At the rear of the office is a door opening into a corridor eight feet wide, which runs at right angles with Nebraska Street, and just opposite this door, in the other wall of the corridor, is a door to the card room. The Armenti girl saw three men sitting in the office, one of whom, Emil Cavedon, was at a desk. "Seeing he [Emil] didn't pay no attention" (when she shouted "Fire"), she got a stone and threw it at the door, whereupon Emil Cavedon came to the door and she yelled "Fire" again and said "your building is on fire." Cavedon walked out a little "ways," looked up, and then said to her, "Go away." At that time the reflection of the fire on the second floor could be seen.

At 7:18 o'clock a fire alarm was rung from a nearby box and a fire engine arrived at the scene in about half a minute. After Emil Cavedon had told the Armenti girl to go away, he returned to the office, got his coat, and came out of the building with Toli. As they came out, the Armenti girl said to Cavedon, "Didn't you see the fire?" and he replied, "I was too busy." He then lighted a cigarette and, as he did so, his hand was "shivering." Again he said to the girl, "Go away." This all happened before the firemen arrived.

When the first piece of apparatus arrived, a fireman, who saw the fire on the second floor only but who had seen three men in the office, tried the main door but could not open it. He then kicked on it and one of the men came to the door, opened it and said, "What's the matter?" The fireman replied, "Your place is on fire." A line of hose was taken into the building and up to the second floor. A lieutenant of the insurance fire patrol, who arrived after the firemen had entered the building, went into the main office and saw the defendants and Toli standing there. He passed through the office, across the corridor and opened the door to the card room and discovered a fire there. Emil Cavedon testified that when the fireman "banged" on the door, he went to the card room, opened the door, and saw that "this was a mass of smoke I saw the firemen coming in and I went back to this door again, and the fireman . . . asked me if the sprinklers were running." There was no evidence that the defendants attempted to give any alarm of the fire, or that Emil Cavedon, when he discovered the fire in the card room, which was before the lieutenant arrived, made any effort to tell the firemen that there was a fire there. Boxes attached to several of the spinning frames had been stuffed with inflammable material and the fires on the second floor were largely confined to these machines, and those which were burned were the most valuable. The fires on the first floor in the carding and picker rooms were around the machines.

About two weeks before the fire, Toli, who had been working there for some time, was made a spare watchman, and it became his duty to take the place of the regular watchman on Saturday nights only. He was provided with a watchman's clock that had to be wound at the eleven stations in the factory, each "wind" being...