Commonwealth v. Lavery

• Decision Date: 30 March 1926
• Citation: 151 N.E. 466,255 Mass. 327
• Parties: COMMONWEALTH v. LAVERY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 327

151 N.E. 466

COMMONWEALTH

v.LAVERY.

Supreme Judicial Court of Massachusetts, Middlesex.

March 30, 1926.

Exceptions from Superior Court, Middlesex County; George A. Flynn, Judge.

Edward Lavery was convicted of breaking and entering a dwelling house in the nighttime and of stealing therefrom, and the excepts. Exceptions overruled.

Patrick J. Delaney, of Boston, for defendant.

Robt. T. Bushnell, of Boston, for the Commonwealth.

SANDERSON, J.

The defendant was convicted on an indictment in two counts each charging him with breaking and entering a dwelling house in the nighttime of January 25, 1925, and with stealing watches and jewelry therefrom. The exceptions relate to the refusal of the trial judge to direct a verdict for the defendant, to the rulings on evidence, and to a portion of the charge.

The places broken into were the upper and lower apartments of a two-family house on Everett street, in Arlington, the eighth or ninth house on that street from Massachusetts avenue. The occupants of both apartments were away from home until shortly after 9 o'clock on the evening of the breaks, having left, in one case, a little before 6, and in the other somewhat earlier. When they returned, they found that both apartments had been broken into and that the property described in the indictment was missing. On the same night, at about 8:05, a police officer saw an Essex touring car, bearing the Massachusetts registration number 409,292, parked nead the curb on Massachusetts avenue diagonally across from Everett street; and at 8:25 he saw the same car at the same place. The defendant was sitting at the wheel, and when the officer passed in front of the car the defendant started out of his seat to see who he was. At 8:30 the defendant passed his hand over the dash light three times and a man came out of Everett street, went to the rear of the Essex car, walked down Massachusetts avenue two hundred and fifty or three hundred feet, and stood in the dark. The defendant then started the automobile, drove to the place where the man was, took him in and went toward Cambridge. This man was described by the officer as being about five feet six or seven inches tall, weighing about one hundred and forty pounds, with very broad shoulders and wearing a black form-fitting overcoat, with a dark suit and a black derby hat.

The automobile was registered in the name of Margaret P. Collins of Roxbury, and through her the defendant was located in Boston on January 27, 1925. He told the officer inconsistent and conflicting stories about his movements on the Sunday night in question. At first he said that he had an appointment with James O'Brien, whom he had known for about five years and who never did any work; that O'Brien called for him at about 6:30 on the night of January 25, and they went to Luna Park Garage in Revere, took the car which belonged to Margaret P. Collins, and after meeting her arrived at Boston at 7:30 or 7:45, and remained there until 11:45; that O'Brien wore a dark derby hat and a dark form-fitting overcoat. When the officer told the witness that his statement did not agree with that made by Mrs. Collins, the defendant said that he guessed he had made a mistake and had described the occurrences of Saturday night; that on Sunday night, the 25th, he left his house at about 8 or 8:15, took the car (which he referred to as ‘my car’) from the Luna Park Garage, drove through several named places, just taking a drive around to see some people, and arrived at Revere to put up the car shortly before 12 o'clock; that no one was with him from the time he left until he returned; that he made one stop on Massachusetts avenue, in Arlington, for nothing in particular-‘just simply to rest up’; that he stopped there about twenty minutes and drove away from Arlington at about 9:30. When asked if he was sure he did not pick up a man in Arlington and drive toward Cambridge, he said that a man on the curb, some little distance from where the automobile had been standing, asked if he was going to Cambridge and the defendant carried him to Harvard Square, where he got out, saying he was going to take the subway for Boston. The defendant stated that he at no time when in Arlington inquired for any one by the name of O'Donoghue; that he was in Arlington a week before January 25, but he thought it was on Monday and not on Sunday night. At a later conversation he said he knew that O'Brien had disappeared because of a telephone message from O'Brien's mother and that he understood that he went away because ‘they were looking for him.’ When asked if he would give the officer any information as to where the jewelry could be recovered, he said he did not want to make any further statement about this at that time, that he first wanted to talk with his father about the matter.

A witness employed at Luna Park Garage, using the entries made by himself in a garage record book to refresh his memory, testified that the defendant came into the garage on January 25, 1925, at seven o'clock and got an Essex touring car numbered 409,292. The page of this book containing the entry of January 25 was then offered and admitted, subject to the defendant's exception. The statute requires garage records to be kept, and prescribes the manner in which entries shall be made. The books are open at all times to the inspection of the registrar and his agents and of any police officer or constable. G. L. c. 90, § 32; St. 1924, ...