Commonwealth v. McAuliffe

• Decision Date: 29 May 1946
• Citation: 67 N.E.2d 240,319 Mass. 635
• Parties: COMMONWEALTH v. WILLIAM MCAULIFFE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

319 Mass. 635

67 N.E.2d 240

COMMONWEALTH v. WILLIAM MCAULIFFE.

Supreme Judicial Court of Massachusetts, Norfolk.

May 29, 1946

May 6, 1946.

Present: FIELD, C.

J., LUMMUS, DOLAN RONAN, & WILKINS, JJ.

Accessory and Principal.

A finding that a police officer was guilty as a principal in the second degree, present, aiding and abetting in the breaking and entering into a cafe by another officer with intent to commit larceny, was not warranted by evidence merely that the other officer and the defendant, who was supposed to be patrolling his beat at some distance, had been parked in the defendant's automobile with a woman at a place from which the cafe was not visible, that, after the hours permitted by law for the purchase of liquor, the other officer, to the knowledge of the defendant, then left the others to get intoxicating liquor which the three were to drink, that the defendant, in reply to a question by the woman respecting the other officer, stated, "He'll be right back," and that the defendant expressed his innocence to a lieutenant and a captain of police after the other officer had been taken into custody in the cafe.

INDICTMENT found and returned on September 7, 1945. The case was tried before Broadhurst, J.

R. F. Barrett, for the defendant. G. L. Rabb, Assistant District Attorney, for the Commonwealth.

WILKINS, J. The defendant was convicted on an indictment charging him with breaking and entering the cafe of one Patrick Curtin in Quincy on August 4, 1945, in the nighttime with intent to commit larceny. The defendant excepted to the denial of his motion for a directed verdict of not guilty.

The facts which the jury could have found may be stated briefly. Patrick Curtin was the owner of Rouillard's Cafe at the corner of Copeland and Common streets, Quincy, in which there was a bar with alcoholic beverages in bottles. On two occasions in July, 1945, two such bottles were taken during the nighttime and on one of those occasions a police box key of the Quincy police department was found on the floor behind the bar. On August 4, 1945, about 2:30 A.M., one Ralph Moreau, a police officer, on whose tour of duty the cafe was situated, entered by the front door which had been locked, and while making his way about with a flashlight found himself in the presence of Curtin, and of a captain and of a lieutenant of the Quincy police department and was taken into custody. In the meantime, the defendant another Quincy police officer, who was supposed to be patrolling his beat at least two fifths of a mile away, was found seated with a young woman in his own automobile on the premises of a filling station on Center Street at a point over one hundred eighty feet from the cafe. The automobile could not be seen from the cafe, nor the cafe from the automobile. Over an hour before, about 1:20 A.M., the defendant, who was driving his automobile, had met Moreau at Brewer's Corner on Moreau's beat, and about 1:40 A.M. they saw the woman walking away from an altercation between two men, and took her into the automobile to drive her to Quincy Square. The defendant drove to two police boxes which Moreau rang. When passing a cafe known as Lucien's, Moreau said, "I'm going to see a man about a jug," to which the defendant replied, "When are you going to see him, tonight?" and Moreau responded, "Yes. After I ring in my next box." After driving to the Willard School, where Moreau rang a box, the defendant said, "Where do you want to go now, Ralph?" and Moreau said, "To try doors at the gasoline...