Commonwealth v. Heinlein

• Decision Date: 11 June 1926
• Parties: COMMONWEALTH v. HEINLEIN. SAME v. DEVEREAUX. SAME v. McLAUGHLIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

256 Mass. 387

152 N.E. 380

COMMONWEALTH v. HEINLEIN. SAME

v.DEVEREAUX. SAME v. McLAUGHLIN.

Supreme Judicial Court of Massachusetts, Middlesex.

June 11, 1926.

Appeal from Superior Criminal Court, Middlesex County.

Edward J. Heinlein, John J. Devereaux, and John J. McLaughlin were convicted of murder in the first degree, and they appeal. Exceptions overruled.C. D. Driscoll, of Boston, for appellant Heinlein.

J. J. Higgins, of Boston, for appellant Deveraux.

S. Hoar, of Oston, for appellant McLaughlin.

A. K. Reading, Dist. Atty., of Obston, for the Commonwealth.

CARROLL, J.

The defendants Heinlein, Devereaux 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 & 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 plainned 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 plainning 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 employé 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 employé 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 employés, 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 order him to throw up his hands. Devereaux testified that he asked Ellery if there was ‘any one else around here,’ and on Ellery 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 to join the others. Devereaux further testified that he told Ferneau to drop the lantern he was carrying, and 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 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 defense 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] 1. Devereaux requested the judge to instruct the jury:

‘The commission or attempted commission of the crime punishable with death or imprisionment for life which the Commonwealth alleges was the robbery of the carbarn 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.’

Other requests were made presenting, in effect, the same question.

‘Murder committed * * * in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree.’ G. L. c. 265, § 1.

Under G. L. c. 265, § 17:

‘Whoever, being armed with a dangerous weapon, assaults another, and robs, steals and takes from his person money * * * with intent if resisted to kill or maim the person robbed, or, being so armed, wounds or strikes the person robbed, shall be punished by imprisonmont * * * for life or for any term of years.’

And by section 21 of this chapter:

‘Whoever, with intent to commit larceny * * * confines * * * or wounds, or attempts or threatens to kill, confine, * * * injure * * * or puts any person in fear, for the purpose of stealing from a building * * * money * * * or other valuables * * * whether he succeeds or fails in the perpetration of such larceny or felony, [shall] be punished’ by life imprisonment.

The judge fully instructed the jury on this aspect of the case. There was no error in refusing Devereaux's request for instructions. After stating that the commonwealth made no contention that the defendants were robbing Ferneau, that the person robbed was the cashier of the street railway company, the judge instructed the jury if they found that a homicide was committed, and robbery of the kind mentioned in the statute, it would be necessary for them to determine ‘whether or not the robbery had begun and was taking place at the time the murder was committed, because unless the murder took place while the robbery was going on it was not committed in the commission of the robbery.’

The defendants were joint conspirators. They went to the car barn in order to perpetrate the crime of robbery. Three of them were armed with deadly weapons. 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 Devereaux. He still held Wingate and Ellery in fear and was seeking Ferneau to put him in fear or ‘get him,’ as he expressed it, that the robbery might succeed, and while his associates were securing the fruits of the robbery. The commission of the crime continued as matter of law during this time, while Devereaux, in carrying out the original plan, met and killed Ferneau. Although his companions had at that time left the building, they were still in possession of stolen property, but not in absolute control of it, and the robbery was not completed when the homicide was committed, even if the evidence of the defendant were believed.

[2][3] The jury were instructed that:

‘If * * * the robbery was ended when the killing was done, * * * the defendants are not guilty in the first degree, so far as that statute [G. L. c. 265, §§ 17, 21] is concerned.’

The question whether G. L. c. 265, §§ 17 and 21, would apply if the defendants had already escaped from the scene of the robbery when Ferneau was killed, we are not called upon to decide. The fact, if true, that Heinlein and the McLaughlin brothers were in the automobile when Devereaux committed the homicide did not establish the fact the the robbery was then completed. The conspiracy had not been abandoned. Deveraus, according to his own testimony, was acting in concert with the others and was carrying out the purpose of the conspiracy. It is settled law that, 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 defense for the associates engaged with others in the commission of a robbery, that they did not intend to take life in its perpetration, or that they forbade their companions to kill. People v. Lawrence, 143 Cal. 148, 76 P. 893,68 L. R. A. 193;People v. Wilson, 145 N. Y. 628, 40 N. E. 392. See State v. Darling, 216 Mo. 450, 115 S. W. 1002,23 L. R. A. (N. S.) 55. See also, State v. Cross, 72 Conn. 722, 46 A. 148;State v. Hopkirk, 84 Mo. 278, 287;People v. Olsen, 80 Cal. 122, 22 P. 125. It has been decided that one is justified in using any degree of force against a robber holding him up with a pistol, and if the robber kills in self-defense the crime is murder. State v. Werner, 144 La. 380, 80 So. 596, 6 A. L. R. 1601;State v. Martin, 94 N. J. Law, 139, 109 A. 350. There was no error in refusing the request and the defendants cannot complain of the instructions given. State of Oregon v. Brown, 7 Or. 186. See, State v. McCahill, 72 Iqwa, 111, 30 N. W. 553,33 N. W. 599;Conrad v. State, 75 Ohio St. 52, 78 N. E. 957,6 L. R. A. (N. S.) 1154,8 Ann. Cas. 966.

The facts disclosed in many of the cases relied on by the defendant Devereaux distinguished them from the case at bar. In this case the original plan of robbery had not been abandoned; the money had not been surrendered or relinquished; none of the defendants was under arrest. Even if some of the defendants were not in the building when the homicide was committed, they were at the time carrying away the stolen property; they had it in their possession; they were awaiting the arrival of Devereaux who was theen carrying out the purpose of the conspiracy. In so far as any of the...