Commonwealth v. Cooper

Citation264 Mass. 368
PartiesCOMMONWEALTH v. HERBERT COOPER.
Decision Date12 September 1928
CourtUnited States State Supreme Judicial Court of Massachusetts

June 29, 1928.

Present: RUGG, C.

J., PIERCE CARROLL, WAIT, & SANDERSON, JJ.

Burning Insured Property. Evidence, Presumptions and burden of proof Circumstantial, Inference, Competency, Relevancy and materiality, Of intent, Of financial condition. Practice Criminal, Exceptions, Argument by district attorney Discretionary ruling upon evidence, Requests, rulings and instructions. Witness, Contradiction, Cross-examination.

At the trial of an indictment, it is not required that inferences to be drawn by the jury be unescapable or necessary; if they are not too remote according to the usual course of events, and if all the circumstances including inferences are of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of guilt on the part of the defendant beyond a reasonable doubt, a verdict of guilty is warranted.

At the trial of an indictment charging the defendant with attempting to burn insured property with intent to injure the insurers, there was evidence that the defendant was the lessee of a store which he used as a meat market and provision store; that, about two hours after the defendant and his wife, who had the only key to the store, left it late on a

Saturday evening, two separate fires were discovered therein in such places that it could be inferred that neither was caused by the other; that the defendant, not having been notified of the fire, came to the store on Sunday, but left after having been refused admittance by the police; that the defendant entered the store on Monday but denied having done so when the police came there an hour or more later; that the police then found that the contents of the store had been disturbed; that the defendant made statements concerning insurance on the property after the fire; and that he notified his insurance broker of the fire on

Sunday, and on Monday had an insurance adjuster with him at the store. The defendant testified that shortly before the fire he learned that one of the policies of insurance had been cancelled. The trial judge denied a motion by the defendant that the jury be ordered to return a verdict of not guilty. Held, that

(1) Findings were warranted that the defendant set the fires, that the property was insured, and that the defendant intended to injure the insurers; and the motion properly was denied;

(2) Evidence, of breaking and entering at another time in the block in which the defendant's store was, was irrelevant and inadmissible;

(3) Evidence of the cost of the store fixtures when new some months before the fire was irrelevant and inadmissible;

(4) No error appeared in excluding evidence that money upon the defendant's person at the time of his arrest was money received from the trade of the store on the preceding Saturday;

(5) While evidence, that the defendant was in good financial circumstances and not in need of money, would have been competent on the issue of his motive, the defendant's general financial responsibility could be shown only by direct evidence: evidence offered by the defendant to show his general reputation as to financial standing; that, by abstract assertions, his business was good and was profitable for a brief period; of the amount of business done per week and in comparison with other weeks; by an expert accountant whose knowledge was based on cost prices of the defendant's property and who was unable to testify concerning the actual financial standing of the defendant at the time of the fire; and by the defendant as to what he paid for various specified articles of property in the store and as to certain of his checks and to certain details of his financial operations at the store, properly was excluded.

Although the prosecuting officer made an improper statement during his closing argument at the trial of an indictment, no error appeared where the jury forthwith were instructed to disregard such statement, and were then, and in the judge's charge, instructed to weigh the evidence according to their own convictions.

There was no error, at the trial of an indictment, in refusal by the trial judge to instruct the jury that an inference of innocence must be drawn by the jury if permitted by the facts.

Requests for rulings by the defendant properly were refused at the trial of an indictment where the matters contained therein were sufficiently included in the charge to the jury.

No reversible error appeared, at the trial of an indictment, in allowing the prosecuting officer in the circumstances to contradict and cross-examine witnesses called by the Commonwealth; nor in allowing him to ask certain questions, the answers to which were either harmless or favorable to the defendant.

The exclusion or allowance of questions concerning subsidiary matters at the trial of an indictment was within the discretion of the trial judge; and no reversible error was shown by his rulings on such questions.

INDICTMENT, found and returned on May 24, 1927, charging the defendant with attempting to burn certain insured property with intent to injure the insurers.

The indictment was tried in the Superior Court on September 12-19, 1927, before Williams, J. Material evidence, and evidence admitted and excluded subject to exceptions, is stated in the opinion. At the close of the evidence, the judge denied a motion by the defendant that the jury be ordered to return a verdict of not guilty. The judge refused to give the following rulings requested by the defendant:

"The jury have a right to consider the question of motive and if it appear from the evidence that there is reasonably a lack of motive the jury have a right to take this lack of motive into consideration as bearing upon the guilt or innocence of the defendant."

"The evidence of the financial standing of the defendant, his reputation for truth and veracity, his ability to meet his obligations, the volume of his business in the store in question are all to be considered on the question of motive."

The charge to the jury was in part as follows: ". . . if the Commonwealth has evidence of motive, that is persuasive evidence that perhaps the man claimed to have committed the crime, actually did it. . . .

"It has been said that this man was insured, or thought he was insured -- I refer to the defendant -- to the extent of $4,000; that the fixtures and goods in the store at the time of the fire weren't of value equal to that amount, and so he had a motive, if he wished to do an unlawful act, for burning the goods for the sake of getting a substantially larger amount in cash to replace them.

"The defendant says that no such motive existed, because, by reason of the evidence he has introduced here, he claims it appears that the goods and merchandise were approximately equal to $4,000, or perhaps more, equal to a sum greater than that.

"Now, all this testimony as to the merchandise and the value of the merchandise, and the fixtures and the value of the fixtures, bears on the motive, and you will consider it only in connection with the element of motive. If it helps you, use it; if it doesn't help you, discard it. The facts of the case, the facts of the crime, are entirely apart from motive, but the existence of a motive or lack of motive may help you in determining the facts of the crime itself."

The jury returned a verdict of guilty and the defendant filed an appeal with an assignment of errors.

The case was submitted on briefs.

M. Caro & J.

F.Barry, for the defendant.

R.T. Bushnell, District Attorney, & F.G. Volpe, Assistant District Attorney, for the Commonwealth.

RUGG, C.J. The defendant was found guilty upon an indictment charging that at a specified time he attempted at a designated place to burn certain goods, wares, merchandise and chattels, which were insured in named insurance companies, with intent to injure these corporations, and in such attempt set fire to crates and boxes and failed in the perpetration of the attempted offence. The case comes before us by appeal and assignment of errors pursuant to Sections 33A to 33G added to G.L.c. 278 by St. 1925, c. 279, Section 1, as amended by St 1926, c. 329, Sections 1, 2, 3, 4, 5, the judge having made the necessary order to that end. Commonwealth v. McDonald, ante, 324.

The felony, which the defendant was found guilty of attempting to commit, (G.L.c. 274, Section 6,) is defined by G.L.c. 266, Section 10, in these words: "Whoever, with intent to injure the insurer, burns a building or any goods, wares, merchandise or other chattels belonging to himself or another, and which are at the time insured against loss or damage by fire, shall be punished by imprisonment in the State prison for not more than twenty years."

In order to establish its charge the Commonwealth was bound to prove (1) that the defendant made the attempt to burn the property described, (2) that that property was insured, and (3) that the defendant had an intent to injure the insurer. The assignment of error based on the refusal to grant a motion for a directed verdict raises the question whether there was sufficient evidence to warrant a finding of these three facts to the requisite degree of certainty. It is undisputed that there were two different fires in the premises, occupied by the defendant as lessee for a meat market and provision store, where was the described property. The main point is whether it rightly could have been found that these fires were set by the defendant.

There was evidence tending to show that the defendant, having the only key to the store, locked it and was the last to leave it, in company with his wife and brother-in-law, at about eleven...

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