Commonwealth v. Cline

• Decision Date: 03 January 1913
• Parties: COMMONWEALTH v. CLINE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 225

100 N.E. 358

COMMONWEALTH v. CLINE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1913

Jan. 3 1913.

COUNSEL

A. C Webber, Asst. Dist. Atty., of Boston, for the Commonwealth.

Clarence W. Rowley, of Boston, and Wm. J. Foley, of South Boston, for defendants.

OPINION

BRALEY J.

The second count of the indictment upon which the defendants were convicted is under R. L. c. 215, § 6, for an attempt to commit the crime of larceny from the person, where the person is alleged to have been to the jurors unknown. A bill of particulars was moved for and denied, and a motion to quash was overruled. These rulings were right. The offense is made out upon proof of a general intent to commit crime, and the doing of overt acts toward its accomplishment. It does not depend upon the amount which might have been stolen, nor is it necessary to describe the property or to allege its value, or even to over that the person unknown had anything in his pocket which could have been the subject of larceny. Com. v. McDonald, 5 Cush. 365; Com. v. Drohan, 210 Mass. 445, 97 N.E. 89. The only specification requested was a description of the property, but this was unessential was the statutory offense had been fully, plainly and substantially set out, and nothing further was necessary to preserve the defendants' constitutional rights. R. L. c. 218,§ 67; Com. v. Snell, 189 Mass. 12, 18, 19, 75 N.E. 75, 3 L. R. A. (N. S.) 1019. It moreover appears that the prosecutor not being in possession of the information desired it could not have been furnished.

The numerous exceptions taken to the admission of evidence although urgently pressed are without merit. The evidence tended to show that the defendants, and one Logan, indicted with them, but subsequently tried and acquitted, through a series of preconcerted devices and maneuvers in which each was to perform a designated part, followed the person to be robbed without exciting his suspicions, and attempted to perpetrate the larceny while he was mingling with a crowd, thus affording them an opportunity for escape without danger of identification. The person charged in the indictment as unknown was on his way to board a street car, when the defendants acting as if they also intended to take the car impeded his progress, and as he stepped with other persons upon the car attempted to rifle his pockets. If two or more are acting in concert for the accomplishment of crime the acts of each are admissible against the others where there is evidence of a common purpose. The testimony implicating each and all cannot be introduced in bulk, but must be put in by piecemeal. The purpose for which the defendants were using the street car before passing to the street was a link in a chain of succeeding events, where the conduct of each defendant and of Logan was for the consideration of the jury under appropriate instructions. Com. v. Scott, 123 Mass. 222, 25 Am. Rep. 81; Com. v. Robinson, 146 Mass. 571, 16 N.E. 452; Com. v. Meserve, 154 Mass. 64, 27 N.E. 997; Com. v. Hunton, 168 Mass. 130, 46 N.E. 404.

The evidence of one Gordon McKenzie, who testified to having observed their movements on the car and in the street, of which he gave a full description, comes within these rules, while the admission of the leading question put by the assistant district attorney, to which the defendants excepted, was within the discretion of the trial judge. York v. Pease, 2 Gray, 282. The attempt to have this witness identify a hat pin for the purpose of corroborating him, having failed, the inquiry was abandoned and the defendants were not harmed by evidence which had become immaterial. But his veracity having been attacked in cross-examination prior consistent statements were offered and admitted to corroborate him. It is unnecessary to decide whether, in view of the declination of the defendants' counsel to answer the question of the judge, if he intended to argue to the jury that McKenzie's evidence was of recent fabrication to meet the exigencies of the commonwealth's case, the statements were admissible. The closing argument not having referred to the question, the jury were explicitly instructed to disregard this portion of the testimony. It must be presumed they followed the instructions, and the defendants have not been prejudiced. Com. v. Ham, 150 Mass. 122, 22 N.E. 704

The conversation of one Conboy with the defendant Cline, and the evidence of one Trainor as to statements made by...