Commonwealth v. Merrick

Decision Date01 June 1926
Citation152 N.E. 377,255 Mass. 510
PartiesCOMMONWEALTH v. MERRICK.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Criminal Court, Essex County; Joseph Walsh, Judge.

John E. Merrick was convicted of inciting and procuring another to place dynamite near a building with intent unlawfully to destroy or injure it, and he excepts. Exceptions overruled.

W. G. Clark, Dist. Atty., of Gloucester, and E. F. Flynn, Asst. Dist. Atty., of Lynn, for the Commonwealth.

John E. Merrick, pro se.

WAIT, J.

The defendant was found guilty upon an indictment which charged that John Doe, whose true name was unknown, on January 4, 1923, placed dynamite near a building in Haverhill with intent unlawfully to destroy or injure the building, and that the defendant before said felony was committed ‘did, incite, procure, aid, counsel, hire or command the said John Doe the said felony to do and commit.’ He contends that certain exceptions saved by him at the trial should be sustained. As argued by him, they present four main questions.

[1] Evidence was admitted of certain statements made by him or by others in his presence at the police station in Haverhill, whither he had gone from his shop in Haverhill, accompanied by Haverhill policemen and a member of the state police. This evidence he contends was improperly admitted because he was at the time under arrest. Whether he was then under arrest or not is immaterial. The statements were not in the nature of confessions. They were admissible because admissions of evidential value made by him either in words or by conduct. The distinction between admissions and confessions is well pointed out in Commonwealth v. Haywood, 247 Mass. 16, 141 N. E. 571. That there is nothing in this contention is established by Commonwealth v. Dascalakis, 243 Mass. 519, 137 N. E. 879, 38 A. L. R. 113.

[2] Moreover, the judge was justified in ruling in the course of the trial, and the jury could have found, that the defendant was not under arrest at the time. It is true that the officers had been sent to bring him to the station, and that those awaiting him there intended to arrest him at some time; but he went with the officers without compulsion upon their statement that the chief of police wished him to come thither, with no physical manifestation of control over his liberty and no statement of intent to restrain him. No word or act of theirs had declared him within the power of the officers and he had done nothing to signify his submission to arrest. Mowry v. Chase, 100 Mass. 79. In law no arrest had taken place when the statements were made.

[3] The defendant offered to show that at the same sitting of the court the grand jury had returned an indictment naming the defendant as principal, and that when they returned the indictment naming John Doe as principal and the defendant as accessory they had knowledge that the defendant was principal. He contends that there was error in excluding the evidence.

The question has not before been presented in any case in this commonwealth which has been called to our attention. The cases which have held that the falsity of an allegation that a person was unknown to the grand jury was material, have been those in which there was evidence, apparently introduced without objection, which went to establish such falsity, and thereby to make out a variance between allegation and proof. Such were Commonwealth v. Stoddard, 9 Allen, 280;Commonwealth v. Tompson, 2 Cush. 551;Commonwealth v. Thornton, 14 Gray, 42;Commonwealth v. Sherman, 13 Allen, 248;Commonwealth v. Glover, 111 Mass. 395. From an early time it seems to have been practiced to charge, either in separate indictments or in different counts of a single indictment, that the same person was principal, or accessory before the fact to a known or unknown principal in the same felony. Commonwealth v. Phillips, 16 Mass. 423. In Rex v. Bush, Russ & Ry. 372 (1818), it was decided by all the judges that the finding of an indictment against the accused as principal was no objection to another indictment charging him as accessory before the fact although the latter alleged that the principal was unknown. Recent cases show a similar practice, without comment to indicate any dissent from the rule of Rex v. Bush, supra, or that the inconsistent allegations could be used in disproof of one another. Commonwealth v. Asherowski, 196 Mass. 342, 82 N. E. 13;Commonwealth v. Derry, 221 Mass. 45, 108 N. E. 890;Commonwealth v. Kaplan, 238 Mass. 250, 130 N. E. 485.

[4]General Laws, c. 277, § 35, renders the variance immaterial, since the essential elements of the crime are correctly stated. The pendency of the second indictment could be raised only before pleading in this cause (Agnew v. United States, 165 U. S. 36, 17 S. Ct. 235, 41 L. Ed. 624), and is not matter of abatement (Commonwealth v. Drew, 3 Cush. 279;Commonwealth v. Lahy, 8 Gray, 459; Rex v. Bush, supra). The ruling was right and the evidence was excluded properly.

[5][6] The judge denied the motion to direct a verdict...

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    • November 4, 1971
    ...Commonwealth v. Galvin, 310 Mass. 733, 735, 39 N.E.2d 656, 658; Commonwealth v. Thornton, 14 Gray, 41, 42. Commonwealth v. Merrick, 255 Mass. 510, 513, 152 N.E. 377. Household has failed to convince us, however, that the grand jury were aware of Hanley's activities in connection with the co......
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    ...the one who is actually committing the offence is a principal. Commonwealth v. Knapp, 9 Pick. 496,20 Am.Dec. 491;Commonwealth v. Merrick, 255 Mass. 510, 152 N.E. 377;Commonwealth v. DiStasio, 297 Mass. 347, 8 N.E.2d 923, 113 A.L.R. 1133. We are of opinion that, in arranging for the payment ......
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    ...127 Mass. 15;Commonwealth v. Asherowski, 196 Mass. 342, 82 N.E. 13;Commonwealth v. Kaplan, 238 Mass. 250, 130 N.E. 485;Commonwealth v. Merrick, 255 Mass. 510, 152 N.E. 377;Commonwealth v. Donoghue, 266 Mass. 391, 165 N.E. 413. The false statements made by the defendant when questioned after......
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