Commonwealth v. Jaffas
| Decision Date | 27 November 1933 |
| Citation | 188 N.E. 263,284 Mass. 417 |
| Parties | COMMONWEALTH v. JAFFAS. SAME v. MALEKOURDIS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Franklin County; T. J. Hammond, Judge.
Louis Jaffas and William Malekourdis were convicted of assisting in an attempt to commit arson, and they bring exceptions.
Exceptions overruled.
J. T. Bartlett, Dist. Atty. of Greenfield, for the commonwealth.
E. J. Tierney, of Lowell, for defendant.
Each of these indictments in substance and effect charged that the defendant at Orange, on September 20, 1932, ‘did wilfully and maliciously aid, counsel or assist in an attempt’ ‘to set fire to or burn’ a building known as the Orange Hotel. Each defendant filed a motion to quash the indictment, which was denied subject to exception. Each indictment is framed on section 5A added to G. L. c. 266, by St. 1932, c. 192, § 5. Its words, so far as here material, are these: ‘Whoever wilfully and maliciously attempts to set fire to, or attempts to burn, or aids, counsels or assists in such an attempt to set fire to or burn, any of the buildings, structures or property mentioned in the foregoing sections, or whoever commits any act preliminary thereto or in furtherance thereof, shall be punished by imprisonment in a jail or house of correction for not more than two and one half years or by a fine of not more than one thousand dollars.’
The defendants contend that the indictments were defective in that they omitted the words ‘wilfully and maliciously’ as descriptive of the attempt ‘to set fire to or burn’ and that this defect was not supplied by charging that the defendants did ‘wilfully and maliciously aid, counsel or assist’ ‘in an attempt * * * to set fire to or burn.’ They rely in this connection upon Commonwealth v. Cooper, 264 Mass. 378, 162 N. E. 733, where it was held that the words ‘wifully and maliciously’ were an essential part of the crime of attempting to burn the building of another and must be charged in the indictment. G. L. c. 274, § 6; c. 266, §§ 1, 2, 3, 4. That contention cannot be supported. The crime created by section 5A, added to chapter 266 by St. 1932, c. 192, § 5, not being ‘punishable by death or imprisonment in the state prison,’ is not a felony but a misdemeanor. G. L. (Ter. Ed.) c. 274, § 1. In misdemeanors there are no degrees, but all who participate in them are principals and may be charged as such and convicted upon proof of having taken any part therein. Commonwealth v. Wallace, 108 Mass. 12, 14;Commonwealth v. Sherman, 191 Mass. 439, 78 N. E. 98;Commonwealth v. Ahearn, 160 Mass. 300, 302, 35 N. E. 853. Superfluous or unnecessary averments may ordinarily be rejected as surplusage. Commonwealth v. Keefe, 7 Gray, 332, 336;Commonwealth v. Barney, 258 Mass. 609, 155 N. E. 600;Commonwealth v. Baxter, 267 Mass. 591, 594, 166 N. E. 742;Commonwealth v. Snow, 269 Mass. 598, 608, 169 N. E. 542, 68 A. L. R. 920; and cases cited.
The gravamen of the charge against each defendant was that he participated wilfully and maliciously in an attempt to set fire to a building. The words that he aided, counselled and assisted were not essential to the charge. Omitting those words from the indictment, each defendant would be charged with the offense of a wilful and malicious attempt to set fire to or burn a building. This, being a misdemeanor would be supported by proof that he did aid, counsel or assist in the attempted burning. Failure to prove unnecessary or superfluous allegations would not entitle the defendant to an acquittal. In cannot be thought that each defendant did not understand the offense with which he was charged or was not enabled to prepare his defense. G. L. (Ter. Ed.) c. 277, §§ 33, 34, 35; Commonwealth v. Pentz, 247 Mass. 500, 506, 143 N. E. 322. It follows that the motion to quash was denied rightly.
Each defendant filed a motion that a verdict of acquittal be directed. There was ample evidence to the effect that the defendant Jaffas, a part owner of the building, employed the defendant Malekourdis to find some one to set fire to the building and that he conferred with John Mehales, who was found by Malekourdis for that purpose. The motive of Jaffas apparently was that he and his adopted son, who was the co-owner of the building, might collect insurance. The only evidence as to the insurance upon the building was a statement by the defendant Jaffas to a witness called by the commonwealth that the hotel was insured for $15,000. There was also evidence that Malekourdis was employed by Jaffas either himself to burn, or to find some one to burn, the building and that money and a note were paid by Jaffas to him for that purpose, and that at his solicitation John Mehales agreed and made an attempt to set fire to the building. The part performed by the latter in execution of the nefarious enterprise is set forth in Commonwealth v. Mehales (Mass.) 188 N. E....
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...266 Mass. 391, 399, 165 N.E. 413; State v. Wyckoff, 31 N.J.Law (2 Vroom) 65, 66. Compare as to misdemeanors, Commonwealth v. Jaffas, 284 Mass. 417, 419, 188 N.E. 263. Since the offences are distinct, proof of guilt as accessory before the fact would constitute a variance upon an indictment ......
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