Commonwealth v. Clifford

• Decision Date: 08 January 1926
• Citation: 150 N.E. 181,254 Mass. 390
• Parties: COMMONWEALTH v. CLIFFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 390

150 N.E. 181

COMMONWEALTH

v.CLIFFORD.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 8, 1926.

Exceptions from Superior Court, Middlesex County; Frederick Lawton, Judge.

Eugene Clifford and another were convicted of breaking and entering a building in the nighttime, with intent to commit larceny, and with stealing in the building, and the named defendant brings exceptions. Exceptions overruled.

Arthur K. Reading, Dist. Atty., and Samuel H. Lewis, Asst. Dist. Atty., both of Boston, for the Commonwealth.

C. W. Rowley, of Boston, for defendant.

SANDERSON, J.

The defendant was indicted with one O'Connor for breaking and entering a building in the nighttime with intent to commit larceny, and with stealing in the building. The only evidence that the crime was committed in the nighttime was a statement to that effect made by the defendant O'Connor to an officer. The trial judge in admitting this evidence ruled that it was inadmissible as against Clifford, and instructed the jury that there was no evidence to warrant his conviction of the full offence charged in the indictment; that if they were satisfied that he broke and entered the store, the verdict as to him should be guilty of breaking and entering in the daytime. The jury returned a general verdict of guilty against both defendants, which was duly received and recorded. Three days thereafter, the defendant Clifford filed a motion that the verdict be set aside and a new trial granted. The first exception in the case relates to the refusal of the trial judge to allow this motion and to make certain findings of fact and rulings of law connected therewith. The grounds of the motion were that the verdict was against the law and the evidence, and that the jury failed to follow the instructions of the court, stated above.

No error of law is disclosed in the refusal of the judge to make the findings of fact requested. The rulings asked for and refused were: (1) The verdict of guilty of breaking and entering in the nighttime was against the evidence and contrary to the instructions properly given by the court; and (2) the verdict must be set aside and a new trial ordered.

After the motion for new trial was denied, the defendant Clifford was called to the bar for sentence and the court, in rendering judgment, did not impose sentence for the offence of which the defendants stood convicted, but for the lesser crime of breaking and entering in the daytime, and directed the clerk so to enter up the judgment. The record of judgment against Clifford is ‘for breaking and entering in daytime and larceny.’ He excepted to the rendition of judgment against him for an offence other than that of which he stood convicted by the jury.

[1] Upon an indictment for breaking and entering with intent to commit larceny, the defendant can be convicted upon evidence which proves that the offence was committed in the night. Commonwealth v. Reynolds, 122 Mass. 454, 457. In that case the court said:

‘If the jury were satisfied that it was done in the daytime, it came within the language of the section; if in the nighttime, then proof of the aggravated offence would justify conviction for the offence of lower grade. The defendant cannot complain, if the offence was committed in the nighttime, that he has been subjected to the lesser penalty; and his conviction will be a bar to any subsequent indictment charging him with the same offence with the aggravating circumstance.’

[2] A defendant charged with breaking and entering with intent to steal and stealing in the nighttime may be convicted of a part of the crime charged. G. L. c. 278, § 12; Commonwealth v. Lang, 10 Gray, 11.

[3][4][5] The question to be decided is, whether a defendant who has been convicted of an aggravated offence upon evidence which justifies his conviction of no more than the offence without the aggravation, may be legally sentenced for the offence without the aggravation. Under the instructions it was the duty of the jury, if they believed the defendant guilty of breaking and entering and larceny, to convict him of so much of the indictment as charged that offence. Commonwealth v. Anthes, 5 Gray, 185; Commonwealth v. Marzynski, 149 Mass. 68, 21 N. E. 228. Whether the judge should have directed the jury, when the verdict was returned and before it was affirmed and recorded, to correct their verdict against Clifford in accordance with his instructions, is not raised on this record. Then the judge may give directions concerning a verdict. Twomey v. Linnehan, 161 Mass. 91, 95, 36 N. E. 590;Levine v. Glove Street Railway, 177 Mass. 204, 58 N. E. 685;Whitney v. Commonwealth, 190 Mass. 531, 536, 77 N. E. 516;Flaherty v. Boston Elevated Railway, 235 Mass. 422, 126 N. E. 798. The defendant made no request at that time and saved no exception to the failure of the judge to act in the matter. Commonwealth v. Borasky, 214 Mass. 313, 321, 101 N. E. 377.

[6][7] Questions of law that could have been raised at the trial and were not, cannot, as matter of right, be raised by a motion for a new trial. The motion in such cases is addressed to the discretion of the court and its decision will not be revised by this court on exceptions. Commonwealth v. Morrison, 134 Mass. 189;Robbins v....