Commonwealth v. Kaplan

• Decision Date: 25 March 1921
• Citation: 130 N.E. 485,238 Mass. 250
• Parties: COMMONWEALTH v. KAPLAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 250

130 N.E. 485

COMMONWEALTH

v.KAPLAN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 25, 1921.

Exceptions from Superior Court, Suffolk County; John A. Aiken, Judge.

Harry Kaplan was convicted of inciting, procuring, etc., another to burn a dwelling house with intent to defraud insurance companies, and he excepts. Exceptions overruled.A. C. Webber, Sp. Asst. Dist. Atty., of Boston, for the commonwealth.

Arthur Berenson, of Boston, for defendant.

DE COURCY, J.

The third count in the indictment averred that Reuben Levine, on September 23, 1915, did burn the dwelling house of Harry Kaplan, with intent to in, jure certain named insurance companies. The defendant Kaplan was convicted on the fourth court, which charged that he ‘before the said felony and burningto defraud insurance company was committed, did incite, procure, and, counsel, hire and command’ Levine to commit the felony charged in the third count. It appeared in evidence that Kaplan bought this property on September 13, 1915, from Pollock and Hecht, for $2,600, paying only about $115 in cash, assuming two mortgages then on the property, and giving to his grantors a third mortgage for the remainder of the purchase price. The insurance on the building amounted to $3,500, and was payable to the two mortgagees, as their interests might appear. The said grantors assigned their interest in the policies to Kaplan; and he in turn made the policies payable to Pollock and Hecht as third mortgagees. On or about September 21, the attorney then acting for Kaplan sent the policies to the office of the insurance agent in order to obtain the assent of the companies to said assignment. Notice was sent to him on the next day that assent was refused; and later the policies were returned to him.

On the day of the fire, September 23, 1915, Levine, who was a painter, was doing some work for the defendant in the vacant tenement on the second floor of the building. There was evidence from which the jury could find that the defendant, late in the forenoon, offered Levine $100 to set the house on fire; that Levine accepted the money, sent his workman Simon Lurie to buy turpentine, made holes in a closet to create a draft, and otherwise prepared the premises for the fire; that turpentine was spread over the floor and in the closet, and the fire was set by placing a lighted cigarette in a box of matches. The fire broke out about 3 o'clock in the afternoon, and damaged the property to the amount of $1,191. A compromise adjustment was made by the four insurance companies jointly for $650. The checks were made payable to the order of the defendant and mortgagees; and by his consent, the money was paid to the mortgagees, to the city for taxes on the property and to his attorney for services.

Although the verdict of guilty was entered March 3, 1917, the filing of the bill of exceptions in the trial court was delayed until October 22 of that year, and its allowance until May 25, 1920. Many exceptions were taken to the admission of evidence and to the refusal of the trial judge to grant certain requests for rulings. We shall consider only those that have been argued, and in the order appearing on the defendant's brief.

[1] 1. By his third and fourth requests the defendant asked the count to direct a verdict of acquittal, on the ground that there was no evidence that he intended to defraud the insurance companies. This claim was based mainly on the alleged fact that he had no binding contract of insurance on the building. He also argued, in this connection, that no intent to injure the insurers was shown on the part of the person who committed the principal felony charged. Although this last point was not expressly raised by the requests, undoubtedly the defendant could not be convicted as accessory before the fact unless it was found that the principal offence was in fact committed in violation of the statute. Commonwealth v. Asherowski, 196 Mass. 342, 82 N. E. 13.

[2][3][4] The statute (R. L. c. 208, § 10) provides that--

‘Whoever, with intent to injure the insurer, burns a building * * elonging to himself or another, and which [is] at the time insured against loss or damage by fire, shall be punished,’ etc.

A direct benefit to the defendant is not made a necessary element of the crime. The fact, if it was a fact, that Kaplan had no valid binding contract insuring his equity in the property, might be considered by the jury as bearing on the improbability that he would cause the fire to be set for the purpose of defrauding the insurance companies; and the judge so instructed the jury by giving the defendant's sixth request. There is a presumption that all men intend the natural and probable consequences of their acts, and this is applicable alike to the alleged principal and the accessory on the evidence. It was practically certain that the insurance companies would be injured by the fire. Their refusal to assent to the assignments of the policies to Kaplan did not affect the rights of the first and second mortgagees to collect insurance to the extent of their losses. Palmer Savings Bank v. Insurance Co., 166 Mass. 189, 44 N. E. 211,32 L. R. A. 615, 55 Am. St. Rep. 387. Further than that, the jury well might find that when the house was burned on September 23, the defendant and Levine supposed that Kaplan's equity was covered by the insurance, and acted on that belief. According to Levine's testimony Kaplan said, when paying him to set the fire, ‘I would like to fix up the house in a little better condition.’ Levine replied, ‘Well, go ahead; it's no use spending the money to repair the tenement, you might as well fix it up the way you want to.’ Kaplan then said, ‘Well, I need the money.’ It is not suggested where that...