Commonwealth v. Cooper

Citation264 Mass. 368,162 N.E. 729
Decision Date14 September 1928
Docket NumberNo. 6053.,6053.
PartiesCOMMONWEALTH v. COOPER.
CourtUnited States State Supreme Judicial Court of Massachusetts
OPINION TEXT STARTS HERE

Appeal from Superior Criminal Court, Middlesex County.

Herbert Cooper was convicted of attempting to burn certain goods, wares, and merchandise with intent to injure certain insurance companies, and he appeals. Affirmed.

See, also, 162 N. E. 733.

1. Arson k13-To establish offense of attempting to burn personalty to injury insurers, commonwealth must prove attempt, that property was insured, and intent (G. L. c. 266, s 10; G. L. c. 274, s 6).

To establish charge that defendant attempted to burn certain personal property to injure insurers, in violation of G. L. c. 266, s 10, and G. L. c. 274, s 6, commonwealth must prove that defendant made attempt to burn property described, that property was insured, and that defendant intended to injure insurers.

2. Arson k37(1)-It is sufficient, to convict for incendiarism to injure insurers, if circumstances persuaded minds of ordinary intelligence thereof beyond reasonable doubt (G. L. c. 266, s 10; G. L. c. 274, s 6).

Whether incendiary fire was set by defendant with intent to injure insurance companies, in violation of G. L. c. 266, s 10, and G. L. c. 274, s 6, need not be drawn by inferences from all the evidence, which are inescapable or necessary; but it is sufficient 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 to the persuasion of incendiarism beyond reasonable doubt.

3. Criminal law k1159(2)-Supreme Judicial Court cannot consider weight of evidence, but only whether jury could find against defendants.

Only question before Supreme Judicial Court in criminal case is whether jury could find against defendants, and court cannot consider any question of the weight of the evidence.

4. Arson k37(2)-Evidence held to justify finding that defendant set fire to merchandise with intent to injure insurers (G. L. c. 266, s 10; G. L. c. 274, s 6).

In prosecution, under G. L. c. 266, s 10, and G. L. c. 274, s 6, for attempt to burn certain goods, wares, and merchandise with intent to injure insurers thereof, evidence held sufficient to justify finding that defendant set fire to the property.

5. Criminal law k400(7)-Defendant's statements, after fire, as to amount of insurance, held sufficient proof of such fact, in prosecution for attempt to injure insurers by burning personalty (G. L. c. 266, s 10; G. L. c. 274, s 6).

Though ordinarily amount of insurance is provable by production of policies, in prosecution under G. L. c. 266, s 10, and G. L. c. 274, s 6, for attempt to injure insurer by burning goods, wares, and merchandise, defendant's statements, following fire, that there were two policies on his property for specified sum in insurance companies named was sufficient proof thereof.

6. Arson k37(2)-Intent to injure insurer by burning insured property may be inferred from circumstances (G. L. c. 266, s 10; G. L. c. 274, s 6).

Intent of defendant to injure insurer by burning insured property, in violation of G. L. c. 266, s 10, and G. L. c. 274, s 6, may be inferred from circumstances, and need not be proved by direct evidence.

7. Arson k31-That defendant believed his property was insured far in excess of its value held adequate basis for finding intent to injure insurers (G. L. c. 266, s 10; G. L. c. 274, s 6).

In prosecution, under G. L. c. 266, s 10, and G. L. c. 274, s 6, for attempt to burn certain goods, wares, and merchandise with intent to injure insurers thereof, evidence that defendant at time of fire believed his property was insured for an amount far in excess of the value of property afforded adequate basis for a finding of the requisite intent to injure insurers.

8. Criminal law k730(9)-Prosecutor's improper argument respecting belief in commonwealth's case held cured by immediate instruction to disregard.

Effect of prosecuting officer's improper statement during closing argument respecting his belief in strength of commonwealth's case, and what might be his course of conduct in the event of an acquittal, held cured, where on defendant's objection jury were immediately instructed to disregard the statement, and to judge of the evidence according to their own convictions, since it must be assumed that jury understood and acted on judge's directions.

9. Criminal law k759(1)-Inferences rightly to be drawn from evidence are for jury; hence instruction that inference of innocence must be drawn, if permitted by facts, was properly refused.

Refusal to instruct jury to the effect that inference of innocence must be drawn, if permitted by the facts, was not error, since inferences rightly to be drawn from all the evidence are for the jury.

10. Criminal law k829(1)-Requested instructions respecting matters sufficiently covered by instructions given were properly denied.

Defendant's requested instructions respecting matters sufficiently and correctly covered by instructions given were properly denied.

11. Criminal law k1170 1/2(5)-Permitting questions by prosecuting officer tending to contradict own witnesses, or in nature of cross-examination, held not reversible error.

Questions allowed to be put by the prosecuting officer, tending to contradict his own witnesses, or in the nature of cross-examination, present no reversible error.

12. Arson k28-Permitting inquiries of police officer why he did not disturb boxes where fire started, or of adjuster why he did not complete inventory, held not error (G. L. c. 266, s 10; G. L. c. 274, s 6).

In prosecution, under G. L. c. 266, s 10, and G. L. c. 274, s 6, for attempt to burn certain goods, wares, and merchandise with intent to injure insurers thereof, was no error in permitting questioning of police officer as to why he did not disturb boxes in the cellar, where fire started, or to the adjuster as to why he did not complete inventory of the property in the store.

13. Criminal law k369(11)-Evidence of breaking and entering into another store of defendant at another time held incompetent, in prosecution for attempt to burn personalty to injure insurers (G. L. c. 266, s 10; G. L. c. 274, s 6).

In prosecution, under G. L. c. 266, s 10, and G. L. c. 274, s 6, for attempt to burn certain goods, wares, and merchandise with intent to injure insurers thereof, evidence of breaking and entering block in which defendant's store at another time was located held incompetent, being irrelevant to any issue, including that whether some one other than defendant might have set the fire.

14. Arson k31-Evidence of cost of store fixtures new some months before fire held incompetent, value at time of fire only being pertinent (G. L. c. 266, s 10; G. L. c. 274, s 6).

In prosecution, under G. L. c. 266, s 10, and G. L. 274, s 6, for attempt to burn certain goods, wares, and merchandise with intent to injure insurers thereof, evidence of the cost of store fixtures involved, when new some months before the fire, held incompetent, only pertinent evidence being value of property at time of fire.

15. Arson k34-Exclusion of evidence concerning money on defendant's person at time of his arrest for attempt to burn merchandise in his store held not error (G. L. c. 266, s 10; G. L. c. 274, s 6).

In prosecution, under G. L. c. 266, s 10, and G. L. c. 274, s 6, for attempt to burn certain goods, wares, and merchandise with intent to injure insurers thereof, exclusion of evidence concerning money on defendant's person at time of his arrest, as being the receipts of the trade at the store on preceding Saturday, held not error.

16. Arson k35-Evidence that defendant was in good financial circumstances is competent on issue of his guilt of setting fire to collect insurance (G. L. c. 266, s 10; G. L. c. 274, s 6).

Where issue is the intent of defendant to injure an insurance company by setting a fire for the purpose of collecting insurance, in violation of G. L. c. 266, s 10; G. L. c. 274, s 6, there is probative force in evidence showing that defendant was in good financial circumstances, and not in need of money.

17. Arson k37(2)-Defendant's financial resources, to be competent on issue of probability of his setting fire to collect insurance, must be shown by direct evidence (G. L. c. 266, s 10; G. L. c. 274, s 6).

The financial resources of defendant, to be competent on issue of his intent to injure insurers by setting a fire to collect the insurance, in violation of G. L. c. 266, s 10; G. L. c. 274, s 6, must be shown by direct evidence, and cannot be proved by general reputation, or by abstract assertions that defendant's business was good or has been profitable for a brief period, or by showing amount of business done during certain week, in comparison with other weeks.

18. Arson k31-Evidence as to value of property in arson case, based solely on cost prices, held properly excluded (G. L. c. 266, s 10; G. L. c. 274, s 6).

In prosecution, under G. L. c. 266, s 10, and G. L. c. 274, s 6, for attempt to burn goods, wares, and merchandise with intent to injure insurers, testimony of expert accountant as to value of defendant's property, based wholly on cost prices, as shown by defendant's records, and the general offer to show by defendant himself what he paid for various items of property by reference to original bills and checks, none of which tended to show his financial resources at time of fire, held properly excluded.John F. Barry and Maurice Caro, both of Boston, for appellant.

Robert T. Bushnell, Dist. Atty., and Frank G. Volpe, Asst. Dist. Atty., both of Boston, 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...

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