Commonwealth v. Hosman
| Decision Date | 04 November 1926 |
| Parties | COMMONWEALTH v. HOSMAN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Criminal Court, Middlesex County; G. A. Flynn, Judge.
David Hosman and another were convicted of being accessories before the fact of malicious injury to personal property, and they except. Exceptions overruled.
Arthur K. Reading, Dist. Atty., and R. T. Bushnell, First Asst. Dist. Atty., both of Boston, for the Commonwealth.
J. P. Fenney and T. H. Mahony, for defendants.
The defendant David Hosman was found guilty of being an accessory before the fact of the offense of malicious injury to personal property. The indictment alleged that Lawrence Lavan did willfully and maliciously injure personal property, to wit, one automobile, to the value of more than $100, of the property of Mary C. Breen; one automobile, to the value of more than $100, of the property of Annie M. Normile; that Hosman, before the felony was committed, did incite, procure, aid, counsel, hire and command the said felony the defendant to do and commit.
There was evidence that Lavan was employed by Hosman and two others to run an automobile for them, from towns in Southern Massachusetts and Rhode Island to Cambridge and Chelsea, carrying alcohol. He testified that he made four or five trips a week and was paid $50 each week by the defendant Hosman; that he was instructed:
‘Regardless of who the police were * * * not to stop for no one, and, if they come in * * * [his] way, to crash through them if it was needed.’
He further testified as follows:
He left Newport, R. I., on the morning of May 3, 1925, with 42 cases of alcohol in the automobile, and drove through Cambridge on the way to Chelsea. He saw the police officer, Normile, in uniform, although he did not know ‘who he was then.’ Normile commanded him to halt ‘in the name of the law.’ He saw both cars, and ‘I crashed right through their cars.’ He did this because ‘I was given instructions to crash through, and I carried my instructions out.’
He testified in cross-examination:
That he was present with the defendant and others at a conversation in the defendant's home, and was told there were police and state troopers on the road; that ‘when you are traveling over the road, and you see them coming for you, don't stop for them, because you can't fix them up, and if they get in your way, you go for them, and if it is necessary to smash cars, smash cars, but keep going’; that he was going at the rate of 45 or 50 miles an hour; that he tried to go between the two cars, and in answer to the question, ‘You thought you might possibly skin through?’ answered, ‘Yes, I did,’ and ‘had no idea to hurt anybody in those cars.’
On redirect examination he testified:
‘My intentions were, if I couldn't get through them, to smash the cars, and if there was anybody in the way, they were to go with the cars.’
There was evidence that, as Lavan approached the corner of Auburn street, in Cambridge, ‘upon a given signal’ a Dodge sedan drove out of Auburn street partly across Brookline street; at the same time another Dodge car was driven from Auburn street, on the other side of Brookline street, so as to meet the Dodge sedan; that Officer Normile, wearing his police uniform, signaled Lavan to stop; that the purpose of the arrangement was to stop Lavan, who was suspected of illegally transporting liquor; that Lavan did not stop, but drove directly into the two Dodge cars and greatly damaged them.
[1] The defendants' motion for a directed verdict was denied. There were no requests for instructions to the jury. The jury returned a verdict of guilty. The defendants excepted--
‘to the part of the charge * * * that it would be sufficient if they found that instructions were given, * * * if the malicious injury was done intentionally and deliberately, out of a spirit of hostility, of ill will toward the occupants, and that the instructions were followed out’; that if the instructions to Lavan as to the police were given, and ‘he believed that the police automobiles were there, and that he went through them, if they found a spirit of hostility to all police automobiles, that would be sufficient.’
G. L. c. 266, § 127, under which the defendants were indicted, makes it a crime willfully and maliciously to destroy or injure the personal property of another. The judge fully instructed the jury on this branch of the case. They were told that the commonwealth must prove something more than a deliberate intent to do a wrong; that they must be satisfied that the act was something more than a deliberate act; ‘it must have been done through a sense of hostility, or of ill will, or of wanton cruelty.’
The defendants were engaged in the illegal transportation of intoxicating liquor. They were seeking to evade the law in carrying out this purpose. They instructed their employee, if the property of others stood in the way, to injure or destroy it, in order that they might succeed in the commission of the crime. This advice to Lavan amounted to an instruction to run down all automobiles barring his progress. Such an act would be manifestly injurious. It was to be done, if necessary, with a reckless disregard of the rights of others, heedless of the consequences, and without lawful excuse. The defendants must have known that, if their agent followed their instructions, it would result in injury or destruction to the property of others, without right. Such an act is willful and malicious within the...
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