Commonwealth v. Mehales

• Decision Date: 27 November 1933
• Citation: 284 Mass. 412,188 N.E. 261
• Parties: COMMONWEALTH v. MEHALES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 412

188 N.E. 261

COMMONWEALTH

v.MEHALES.

Supreme Judicial Court of Massachusetts, Franklin.

Nov. 27, 1933.

Exceptions from Superior Court, Franklin County; T. J. Hammond, Judge.

John Mehales, alias, was convicted of an attempt to commit arson, and he brings exceptions.

Exceptions overruled.

J. T. Bartlett, Dist. Atty., of Greenfield, for the commonwealth.

H. J. Booras, of Boston, for defendant.

RUGG, Chief Justice.

An indictment was presented charging that the defendant on September 20, 1932, at Orange, ‘did willfully and maliciously attempt to set fire to’ a hotel building belonging to third persons.The case was tried before a judge of the superior court sitting without a jury upon an agreed statement of facts.Those facts show that the defendant made a bargain through the procurement of an owner of an unoccupied building to burn it for compensation for the purpose of enabling the owners to collect insurance.Pursuant to that arrangement the defendant, when it was somewhat dark and after seven o'clock in the evening, entered the building from a rear window carrying with him two gallons of turpentine and two gallons of gasoline and, leaving them on the first floor, went upstairs to another room.There he made a highly inflammable bomb from powder carried with him in a bottle and fuses or wicks and a paper.He intended to spread the gasoline around the bomb before he set it on fire, and to light it at midnight.He was arrested about a quarter past eight when he had been in the building less than an hour.He had not lighted any match or actually set any fire.The only exception is to the denial of the defendant's motion that as matter of law on these factshe must be found not guilty.

The indictment is founded on section 5A, added to G. L. c. 266 by St. 1932, c. 192, § 5.That section is in these words:

‘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 placing or distributing of any flammable, explosive or combustible material or substance or any device in or against any building, structure or property mentioned in the foregoing sections in an arrangement or preparation with intent eventually to wilfully and maliciously set fire to or burn such building, structure or property, or to procure the setting fire to or burning of the same shall, for the purposes of this section, constitute an attempt to burn such building, structure or property.’

According to the first paragraph of this section, reference must be had to the preceding sections of chapter 192 to ascertain a description of the buildings to which the section applies.The buildings enumerated in section 2 of chapter 192 include a building such as is described in the indictment and in the agreed statement of facts.In that section there is the significant provision that the buildings thus enumerated comprise those owned by the person or persons who commit the act of burning as well as those owned by the others.The same significant provision is in section 1 of chapter 192, which relates to the burning of dwelling houses.The buildings of the owner as well as of others are thereby imported into section 5A by reference as buildings upon which attempts to burn may be made.The repetition of those exact words is not necessary to make them a part of that section.Thus the ‘attempt’ described in section 5A includes an attempt to set fire to a building by or at the instigation of the owner.

A highly important change has been wrought in the criminal law touching the burning of buildings by the enactment of St. 1932, c. 192.It is now made a crime for an owner wilfully and maliciously to burn his own building.At common law one could not be guilty of burning his own house.Therefore it was held in Commonwealth v. Makely, 131 Mass. 421, that one could not be guilty of burning the dwelling house of another upon proof of burningsuch dwelling house by the procurement of the owner to enable him to obtain money from insurers.The ground of the decision was that the crime consisted in the wilful and malicious injury to the owner of the...