Commonwealth v. Novicki
| Decision Date | 29 June 1949 |
| Citation | 324 Mass. 461,87 N.E.2d 1 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | COMMONWEALTH v. ANTHONY NOVICKI & others. |
March 7, 1949.
Present: QUA, C.
J., LUMMUS, RONAN WILKINS, & WILLIAMS, JJ.
Robbery. Larceny.
Pleading, Criminal Indictment. Practice, Criminal, Ordering verdict, Verdict Sentence. An indictment under G. L. (Ter. Ed.) c. 265 Section 17, as appearing in
St. 1943, c.
250, Section 1, charging armed robbery, charged also the offence, necessarily included therein, of larceny.
At the trial of an indictment charging several defendants with the crime of armed robbery of money from the person of a cashier, the jury should have been instructed to return a verdict of not guilty of armed robbery where there was evidence that money in the custody of the cashier was stolen by the defendants but there was no evidence that it was stolen by means of force or violence used upon his person or by means of putting him in fear.
It was proper to deny a general motion by a defendant that a verdict of not guilty be ordered at the trial of an indictment charging armed robbery against several defendants where the evidence warranted a finding that the defendants acting in concert stole money from the custody of another, although it did not warrant a finding that there was a robbery.
An instruction to the jury at the trial of an indictment charging armed robbery of money from the person of a cashier was error in that, where there was an entire lack of evidence that the money was stolen from his custody by means of force and violence used toward the cashier or by means of putting him in fear, the charge by illustration applied the principle of constructive force and violence and also omitted the essential element of knowledge of conduct resulting in fear operating on the person robbed.
Upon appeals after verdicts of guilty by defendants charged with armed robbery of money from the person of a cashier, where there was ample evidence that the money was stolen by the defendants from the custody of the cashier but no evidence that there was a robbery, the verdicts were ordered set aside unless the Commonwealth should move for judgment and sentence as upon convictions for larceny.
INDICTMENT, found and returned on March 2, 1948. The indictment was tried before Goldberg, J.
F. Juggins & J.
H. Soble, (A.
F. Hassett with them,) for the defendants.
L. C. Sprague, Assistant District Attorney, for the Commonwealth.
These are appeals under G. L. (Ter. Ed.) c. 278, Sections 33A-33G as amended in Section 33E by St. 1939, c. 341, after sentences imposed following verdicts of guilty returned on an indictment which charged that the defendants on January 9, 1948, at Cambridge, "being armed with a dangerous weapon, did assault Estelle Sutherland with intent to rob her, and thereby did rob and steal from the person of said Estelle Sutherland money of the amount and of the value of fifty thousand dollars of the property of Harvard Cooperative Society."
There was evidence that shortly before 10:30 A.M. on January 9, 1948, a canvas bag containing $50,000 was deposited by the United States Trucking Corporation in the cashier's cage of the Harvard Cooperative Society at its store in Harvard Square, Cambridge. The bag was placed near the door of the cage and was receipted for by Estelle Sutherland, the cashier. Shortly thereafter the defendants Novicki and Voutiritsa together with one Maverides, a codefendant at the trial but not an appellant, entered the store by its front entrance. Acting in concert, they took various positions in the store. Maverides went to the cashier's cage, opened the door of the cage, and seized the bag containing the money. At or about the same time Novicki, at the front of the store, set off a daylight distress signal (referred to at the trial as a smoke bomb) which emitted a reddish smoke. It caused a noise similar to that from the explosion of a firecracker. Dupre, an assistant manager, ran toward the front of the store and was stopped by Voutiritsa who, with his hands in his overcoat pockets, ordered Dupre to stand over against the wall. There was confusion among the customers in the store. Maverides left the cage with the bag and went toward the rear door of the store. His associates followed and all ran out of the door. Another "smoke bomb" was dropped just within the rear door and exploded as a customer, one Harper, and another man attempted to follow the defendants through the door. The door was held temporarily from the outside, and after Harper was able to open it, he started to follow the defendants, who were running down the back street. One of them pointed a revolver at him. The men ran to an automobile driven by the defendant Lewis which was waiting for them a short distance away, got in and were driven away.
At the time Maverides took the bag from the cage Miss Sutherland was listing checks on an adding machine and sitting with her back to the bag of money. She heard no noise at the front of the store and observed no smoke. Her attention was first drawn from her work by a noise behind her as though something had dropped on the floor. She testified that she turned around "just in time to see a man with the sack of money going out the door, bent over as though he had a football." When asked, "You were frightened and upset, and that is about all you remember of it," she replied, "Yes, sir." On cross-examination she testified that at the time Maverides took the money he had not frightened her, had not said anything to her nor pointed a gun at her. When she turned around Maverides was just about to go through the door of the cage and, knowing that he had the money, she was "upset."
At the conclusion of the evidence the defendants Novicki and Lewis each moved that "the jury be instructed to return a verdict of not guilty of the charge of armed robbery." The defendant Voutiritsa moved that the court "direct a verdict of not guilty." Exceptions were taken to the denial of these motions and their denial is the basis of an assignment of error by each defendant. Each defendant has also excepted to and has assigned as error that part of the judge's charge concerning constructive force and violence. Assignments of error relating to matters of evidence have not been argued and are treated as waived.
Robbery as defined by the common law is a crime in this Commonwealth. Commonwealth v. Humphries, 7 Mass. 242 . See also Commonwealth v. Clifford, 8 Cush. 215, 216. In Commonwealth v. Weiner, 255 Mass. 506 , 509, it is said, "A thing is in the presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it." Commonwealth v. Homer, 235 Mass. 526 , 533. When the term robbery is used in an indictment it is understood to mean "The taking and carrying away of personal property of another from his person and against his will, by force...
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