Commonwealth v. Grace
| Decision Date | 28 November 1928 |
| Citation | 163 N.E. 855,265 Mass. 119 |
| Parties | COMMONWEALTH v. GRACE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Supreme Judicial Court, Hampshire County.
Philip A. Grace was convicted for breaking and entering a dwelling house in the nighttime with intent to steal, and for larceny and possession of burglarious implements, and he brings exceptions. Exceptions overruled.
Charles Fairhurst, Dist. Atty., of Greenfield, for the commonwealth.
Joseph B. Ely, Thomas F. Moriarty, and William C. Giles, all of Springfield, for defendant.
The defendant was indicted and convicted under G. L. c. 266, § 15, of the crime of breaking and entering in the nighttime the dwelling house of one George B. McCallum with intent to steal, and the larceny therein of ‘one screwdriver of the value of twenty-five cents, and fifteen bottles of champagne of the value of more than one hundred dollars,’ the property of said McCallum. The defendant was also indicted and convicted under G. L. c. 266, § 49, for knowingly having in his possession burglarious implements and intending to use them as such. One exception was saved to the admission of evidence. The others relate to certain instructions given.
1. The owner of the champagne alleged to have been stolen was permitted to testify, subject to the defendant's exception, that its value was between $150 and $180. This exception must be overruled. As the defendant was charged with breaking and entering a dwelling house in the nighttime with intent to steal the amount of the property stolen or its value was immaterial. Commonwealth v. Williams, 2 Cush. 582, 588.
[2] 2. In the course of his charge the presiding judge explained to the jury the difference between direct or positive evidence and circumstantial evidence. Circumstantial evidence ‘is constantly applied in courts of justice, and has been commended by most eminent judges.’ Commonwealth v. Richmond, 207 Mass. 240, 246, 93 N. E. 816, 819 (20 Ann. Cas. 1269). It is plain from the entire charge that the judge submitted the cases to the jury upon all the evidence, both direct and circumstantial, and that no prejudicial error is shown.
3. The judge instructed the jury in substance that, if the personal property of one person is found in the possession of another, and the latter offers no explanation as to his possession thereof, there is a presumption that he stole it, but that the presumption is one of fact and not of law. This instruction was correct. It is settled that the possession of stolen property by one soon after the theft, if no explanation or an...
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