Commonwealth v. Derry
| Decision Date | 19 May 1915 |
| Citation | 221 Mass. 45,108 N.E. 890 |
| Parties | COMMONWEALTH v. DERRY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The testimony of Collins and Wheelwright referred to in the opinion, related to testimony that Frank Derry went to the store of Wheelwright, where Collins was employed as clerk, and asked for cork stopples, exhibiting a cork of the size wanted. There were no corks of that size in stock, and none were delivered.
Michl. A. Sullivan, Dist. Atty., of Lawrence, for the Commonwealth.
Alden P. White and Guy C. Richards, both of Salem, for defendant.
The defendant was indicted in two counts charging him in the first count under R. L. c. 208, § 10, with burning his box factory in Danvers on November 22, 1911, to defraud certain insurance companies, and in the second count under R. L. c 215, § 2, with being an accessory before the fact to such burning by a person to the jurors unknown. The defendant was acquitted as principal and found guilty as accessory before the fact. The factory was equipped with a sprinkler system which might be operated in two ways, one by filling it with air which would be compressed by the pressure of the water behind it, and one by filling it with water.
After the fire it was discovered that of the 214 sprinkler heads of the system with which the factory was equipped 63 had been plugged with corks of the size ordinarily used in halfpint bottles. The fire protective efficiency of the system manifestly was impaired in the proportion that the plugged heads bore to the whole number of heads. The fact of the plugging proved indubitably some one's purpose to destroy, at least in part, the shield which the system presented to the ravages of a possible fire.
There was testimony upon which the jury properly might have found that the defendant had sufficient mechanical knowledge and skill to remove the heads, insert the corks, and then restore the heads to their normal position. The testimony also would have justified a finding that of those connected with the defendant's business only two others,--Harris and Waugh,--understood the system and could have plugged the heads.
There was testimony upon which the jury might have found that the defendant had ample although not exclusive opportunity to plug the heads.
While it properly could not have been found that the property was over insured, it might have been found that for some good or bad reasons, or for no reason at all, the defendant was disheartened and not adverse to making a fire sale. This fact, if found, established a motive for the defendant's alleged acts.
The commonwealth strongly argues that the defendant and his brother, Frank Derry, had entered into a conspiracy to burn the defendant's box factory, and that the acts of the defendant and the acts of Frank Derry, in the purchase and attempts to purchase corks, were 'directed towards a common object, namely, the object of making preparations for the fire and setting the fire.' The short answer to this contention is that the defendant and Frank Derry were not, and so far as appears are not, under indictment as conspirators.
If the evidence had shown a conspiracy to burn, it is doubtful if an indictment would lie after the commission in fact of the felony, and especially after the acquittal of one of the two alleged conspirators. To be an accessory before the fact the person incited, procured or commanded must...
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