Commonwealth v. McCarthy
| Decision Date | 01 July 1930 |
| Citation | 172 N.E. 97,272 Mass. 107 |
| Parties | COMMONWEALTH v. McCARTHY et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; F. W. Fosdick, Judge.
James P. McCarthy and others were convicted of conspiracy to steal the property of persons unknown, and named defendant and another bring exceptions.
Exceptions overruled.
R. T. Bushnell, Dist. Atty., of Boston, for the Commonwealth.
P. J. Delaney, of Boston, for defendants.
The defendants McCarthy, Burke and Cotter were found guilty on an indictment charging conspiracy to steal the property of persons unknown. The defendants asked for specifications of time and the place ‘where the alleged crime was committed.’ The Commonwealth answered, that it was unable to specify the exact date on which the conspiracy was formed ‘but it was somewhere in the vicinity of August 1, 1929, when a conspiracy was formed in the City of Cambridge or its vicinity.’ The case is before us on the exceptions of McCarthy and Cotter.
There was evidence from police officer Falvey that he was assigned to station 2; that the defendants, who were police officers, were assigned to the same station in August, 1929; that early in the morning of August 21, he went into a garage on his route and found the defendants there; that a sedan automobile stood on the wash stand and McCarthy was spraying it with water and held a hose in his hand, Burke was to the left of the automobile and Cotter was ‘alongside a five-gallon can which was on the running board of’ a truck; that when the witness came in sight, a hose running into the five-gallon can ‘was taken out by Cotter,’ the can was seized by Burke, who put it in the sedan, and the hose was thrown into the back of the automobile; that when the hose was taken from the can and thrown into the sedan ‘it sprayed gasoline all over the front; that there was an impression of this can on the running board of the truck and gasoline was dripping down underneath this running board’; that Burke was asked ‘What are you doing, filling up again?’ and he answered, Yes; that Cotter said ‘is it any of your * * * business'; that the witness said ‘You have been warned by me to keep out of here; therefore put that gasoline back in that truck and get out of here’; that Cotter put on his coat, ‘got into the’ sedan, and McCarthy drove it, Cotter and Burke being on the back seat with the five-gallon can of gasoline. He further testified that some time in June or early in July he saw Cotter at the garage with a five-gallon can of gasoline, which he poured into his automobile; that at this time McCarthy was in the office of the garage; that the witness said to Cotter it was wrong to take things that did not belong to him and Cotter said that everything was all right; that on August 21 the witness with a captain of police found the automobiles of the three defendants and in Burke's car there was a five-gallon can and a piece of garden hose, in McCarthy's car there was also a five-gallon can and a piece of red rubber hose, and in Cotter's car there was a five-gallon can and two pieces of rubber hose; that on the evening of August 23 the captain asked Cotter, after the witness had repeated what he had seen at the garage, ‘what were you doing down there in the Main Street Garage?’ and Cotter said ‘I wasn't down there’; that he was then asked, ‘What about this gasoline?’ and he answered, McCarthy also denied taking any gasoline.
The defendants moved for directed verdicts; their motions were denied; the defendants excepted. These three men were found at night in the garage in question; they had the appliance for taking the gasoline. One was apparently washing the automobile while the other two were siphoning the gasoline out of the gas tank on the truck into a five-gallon can, which they put into their automobile and took away. They were not strangers to each other. A can and hose were found in each car. They denied that they were present when the gasoline was stolen. It could have been found on all the evidence that by a prearranged plan they were all present, engaged in a scheme to steal the gasoline from the owner; that there was a mutual understanding and the defendants were acting together for a common end to accomplish a crime. Attorney General v. Tufts, 239 Mass. 458, 493, 131 N. E. 573,132 N. E. 322,17 A. L. R. 274. The jury could take...
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