Commonwealth v. Devereaux

• Decision Date: 09 June 1926
• Parties: COMMONWEALTH v. JOHN J. DEVEREAUX. SAME v. EDWARD J. HEINLEIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

256 Mass. 387

COMMONWEALTH v. JOHN J. DEVEREAUX. SAME v. EDWARD J. HEINLEIN.

Supreme Judicial Court of Massachusetts, Middlesex.

June 9, 1926

March 15, 1926.

Present: RUGG, C.

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

Homicide. Conspiracy.

Practice, Criminal Exceptions.

At the trial of three defendants for murder, there was evidence that the three drove in an automobile to a car barn of a street railway company in the night time; that two, armed, went to the office of the cashier on the second floor, placed the occupants in fear of their lives and stole money; that the third, armed, was left on guard below, where he placed two men in fear of their lives and made them lie down and then shot and beat a watchman who had seemed to offer him resistance, as a result of which the watchman died. The evidence of the Commonwealth was that the watchman was killed while the other two defendants were in the cashier's office, and the evidence of the defendants was that at that time the first two defendants had retired to and were waiting in the automobile.

Held, that (1) The robbery did not end when the defendants secured possession of the money: it was not completed while some of the defendants were on their way from the office to the floor below, or while they were in the automobile, waiting for the third defendant;

(2) It was proper to refuse to instruct the jury: "The commission or attempted commission of the crime punishable with death or imprisonment for life which the Commonwealth alleges was the robbery of the car barn ended when the defendants had secured possession of the money taken by them and when they had left the building where that money had been secured";

If two or more combine to commit a robbery and a homicide results, each is criminally responsible for the acts of his associates in the perpetration of the common design for which they conspired and it is no defence for the associates of the one who committed the homicide, that they did not intend to take life in its perpetration, or that they forbade their companion to kill.

The use of any degree of force against a robber holding one up with a pistol is justifiable, and, if the robber in those circumstances kills in self defence, the crime is murder.

At the trial above described, the third defendant testified and admitted that at the time of the killing he was engaged in a robbery, armed with a dangerous weapon; that he had forced two men to lie on the floor and held them there in fear; that, when he met the watchman, he told him to

"throw up his hands and drop the lantern." He further testified that the watchman swung the lantern and "I ducked and I pointed a gun downwards and fired a shot. He . . . grabbed me," and "I hit him two or three times on the head," and that when he fired he did not intend to hit him, he fired to "scare him" and when he hit him on the head, he did not intend to kill him. The judge refused to instruct the jury, at the request of the third defendant, "Under an indictment charging murder in the first degree, the jury may find the defendant guilty of murder in the first degree or guilty of murder in the second degree or guilty of manslaughter;" and instructed them that there was to be no verdict of manslaughter or of assault and battery. Held, that

(1) The instruction asked for properly was refused and the instruction given constituted no error;

(2) It was proper to leave to the jury the question, whether the murder was committed with extreme cruelty or atrocity.

Instructions given at the trial above described as to responsibility in law of the first two defendants for the act of the third were held to have given in substance requests of the two defendants for rulings upon that issue, so far as they were correct in law, and fully to have protected the rights of such defendants.

In the circumstances above described, it was not essential to the conviction of the defendants that murder should be a part of the original plan, if it was one of the probable consequences of the robbery by the defendants, armed, as they were, with deadly weapons.

No harm was done to the defendants at the trial above described by the judge's informing the jury that they should be prepared, when their verdict was read, to answer as to the ground upon which they based their findings, it appearing that no such inquiry was made of the jury.

One defendant at the trial above described testified that, prior to the night of the robbery, he never carried a gun. He then was asked if he had ever pointed a gun at a person in Boston. He replied, "No." The question then was asked, if he did not point a revolver at a certain police officer's head. He answered in the negative. The judge thereupon told the jury that the defendant was not prejudiced because of his negative answer, and "the denial does not give any evidence to the contrary." Held, that the defendant was not prejudiced by such questions.

THREE INDICTMENTS, found and returned on October 7, 1925, charging the defendants, respectively, with the murder of James H. Ferneau on October 4, 1925.

In the Superior Court, the indictments were tried before Fosdick, J. Material evidence and such of the exceptions saved by the defendants as were relied upon in this court are described in the opinion.

On November 29, 1925, the defendants were found guilty of murder in the first degree. On December 17, 1925, each defendant filed an appeal and on the same day a copy of the transcript of the evidence was delivered to the clerk of the court. On December 23, 1925, the defendants were notified that the summary of the record was completed and on January 9, 1926, the defendants' assignments of error were filed.

C.D. Driscoll, for the defendant Heinlein. J.J. Higgins, for the defendant Devereaux.

S. Hoar, for the defendant McLaughlin. A.K. Reading, District Attorney, for the Commonwealth.

CARROLL, J. The defendants Devereaux, Heinlein and John J. McLaughlin, were convicted of the murder in the first degree of James H Ferneau. The crime was committed at the car barn of the Middlesex and Boston Street Railway Company, Waltham, October 4, 1925.

There was evidence that on the evening of Saturday, October 3, the defendants and Peter J. McLaughlin, a brother of John J. McLaughlin, at the time of the trial a fugitive from justice, met at the home of John J. McLaughlin and there planned the robbery. Peter McLaughlin and Heinlein went to the home of Peter V. King. They secured an automobile, and King agreed to drive it. McLaughlin and Heinlein returned to the McLaughlin home, and while planning to commit the robbery at the car barn, if opportunity presented, Heinlein, Devereaux and the McLaughlins examined a pistol and two revolvers. These were placed with a number of caps in a pillow case which John McLaughlin carried from the house to the automobile. Heinlein testified that before they left the McLaughlin house it was agreed there would be no harm done to any one in the car barns. Arriving at the car barn, the three defendants and Peter McLaughlin alighted from the automobile, leaving King in charge of it. Devereaux, Heinlein and Peter McLaughlin "took out a gun" from the pillow case. John McLaughlin carried the pillow case. Each of the defendants had a handkerchief or towel over his face. There was evidence that Heinlein and the McLaughlins went to the second floor, where the offices of the street railway company were located, and Devereaux remained on the first floor as a guard or lookout. He met one Wingate, a former employee of the railway company. Pointing a pistol at him, he ordered Wingate to throw up his hands and compelled him to lie on the floor. Devereaux also forced Joseph R. Ellery, an employee of the company, to lie on the floor beside Wingate. When the McLaughlins and Heinlein entered the office on the second floor, they ordered the two employees, William P. Baker and William J. Main, to put up their hands. Main was directed to open the door of the inside office or cashier's cage, and, while Main and Baker were held in fear by Peter McLaughlin and Heinlein, John McLaughlin swept the money into the pillow case from the shelf, and also took money from two safes.

According to the evidence of the Commonwealth, while the McLaughlins and Heinlein were robbing the cashier on the second floor, Devereaux met the night watchman Ferneau and ordered him to throw up his hands. Devereaux testified that he asked Wingate and Ellery if there was "Anyone else around here," and, on Ellery's informing him that there was another man on the premises, Devereaux said, "All right, I will go out and get him." He also testified that he did not use the expression "get him" in the sense that he meant to kill, but to "get him," to have him join the others. Devereaux further testified that he told Ferneau to drop the lantern he was carrying, that Ferneau swung the lantern and "I ducked and I pointed a gun downwards and fired a shot. He . . . grabbed me," and "I hit him two or three times on the head." Ferneau died, either from the shot or from the blows on the head. The Commonwealth's evidence tended to show that he was killed in the car barn while Heinlein and McLaughlin were in the office and actually engaged in the robbery. The evidence for the defence tended to show that Devereaux killed Ferneau while Heinlein and the McLaughlin brothers were in the automobile.

After the homicide the defendants returned to Boston and went to the home of one Bennett.

1. Devereaux requested the judge to instruct the jury: "The commission or attempted commission of the crime punishable with death or imprisonment for life which the Commonwealth alleges was the robbery of the car barn ended when the defendants had secured possession of...