Commonwealth v. Nickologines

• Citation: 76 N.E.2d 649,322 Mass. 274
• Parties: COMMONWEALTH v. CHRISATOUMAS NICKOLOGINES.
• Decision Date: 08 January 1948
• Court: United States State Supreme Judicial Court of Massachusetts

322 Mass. 274

76 N.E.2d 649

COMMONWEALTH v. CHRISATOUMAS NICKOLOGINES.

Supreme Judicial Court of Massachusetts, Essex.

January 8, 1948

November 3, 1947.

Present: QUA, C.

J., DOLAN, WILKINS SPALDING, & WILLIAMS, JJ.

Evidence Admissions and confessions. Accessory and Principal. Robbery.

At the trial of an indictment charging the defendant with being an accessory to a robbery, evidence of statements respecting the robbery made by one of the principals in the presence of the defendant while the defendant was under arrest was admissible where the defendant did not remain silent at the time of such statements but made remarks which were not an unequivocal denial of the truth thereof.

A finding of guilty of being an accessory before the fact to a robbery while armed was warranted by evidence that the defendant brought to the attention of one of four principals in the robbery the fact that the person robbed was an easy person to rob and was accustomed to carry a substantial amount of money with him that he pointed out the automobile of the person robbed to that principal; that a few days later the principals followed the automobile when the person robbed went home in it and there robbed him at the point of a gun held by one of them and that after the robbery the defendant was in possession of a watch taken from the person robbed.

Requests for certain rulings as to the use of a firearm in committing a robbery were not pertinent and properly were refused at the trial of an indictment charging the defendant with being an accessory to the crime of robbery while armed under G. L. (Ter. Ed.) c. 265, Section 17, as appearing in St. 1943, c. 250, Section 1, since the gist of that crime is being armed while committing a robbery, not the use of the weapon in committing it.

INDICTMENT, found and returned on May 14, 1947. The case was tried before Hudson, J.

A. H. Salisbury, 2d, for the defendant. H. R. Mayo, Jr., Assistant District Attorney, for the Commonwealth.

WILLIAMS, J. This indictment charges the defendant with being an accessory before the fact to the crime of robbery, being armed with a dangerous weapon, G. L. (Ter. Ed.) c. 265, Section 17, as appearing in St. 1943, c. 250, Section 1, of one Domenic DiZazzo on December 18, 1946, at Lawrence. The four principals in the robbery, Chateauneuf, Cleary,

Cottam, and McClellan, have all pleaded guilty. The present case comes before this court, after a verdict of guilty, by appeal with a summary of the record, a transcript of the evidence, and an assignment of errors, all in accordance with G. L. (Ter. Ed.) c. 278, Sections 33A-33G, as amended by St. 1939, c. 341. The questions to be considered are included in the defendant's three assignments of error.

There was evidence of the following facts. A few days before December 18, 1946, the defendant brought to the attention of Chateauneuf the fact that a man named DiZazzo, who worked at the Melody Lounge in Lawrence, was in the habit of carrying a substantial amount of money on his person and was an "easy fellow to rob." The defendant and Chateauneuf went to Lawrence and the defendant pointed out to Chateauneuf DiZazzo's automobile, which was parked outside the lounge. On December 18 the four persons named above as principals went from Lowell to the Melody Lounge in Lawrence, waited until DiZazzo came out and got into his automobile, followed him to his home, held him up with the aid of a gun in the hands of Chateauneuf, and took from his person a sum of money and a valuable wrist watch.

The first assignment of error relates to the refusal of the judge to strike out the testimony of the witness Trainor relative to certain statements of the witness Chateauneuf made in the presence of the defendant at the Lawrence police station. It is the contention of the defendant that, if not technically under arrest, he was restrained by fear, doubts of his rights and the belief that his security would best be protected if he remained silent. However, he did not remain silent, nor can his remarks or statements be considered unequivocal denials of the truth of the statements made by Chateauneuf.

The defendant having been brought to the Lawrence police station in circumstances which we will assume might be found to constitute his arrest (but see Commonwealth v Merrick, 255 Mass. 510 , 512), Chateauneuf, in the defendant's presence, repeated in substance the story of the robbery which he later related in his testimony at the trial of this case. He implicated the defendant as the one who had caused the robbery to be effected. In reference to Chateauneuf's statement that at some time after the robbery the defendant had possession of DiZazzo's watch for two days, the defendant broke in and said, "You tried to sell me the watch for my car." At the end of Chateauneuf's recital, in response to an inquiry the...