Commonwealth v. Scott

• Decision Date: 19 October 1877
• Citation: 123 Mass. 222
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Commonwealth v. Robert Scott & another

123 Mass. 222

Commonwealth v. Robert Scott & another

Supreme Court of Massachusetts

October 19, 1877

Argued October 5, 1877 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Hampshire. Indictment against Robert Scott and James Dunlap, for breaking and entering, on January 26, 1876, the banking house of the Northampton National Bank, at Northampton, with intent to commit larceny therein. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions in substance as follows:

1. At the opening of the trial, the district attorney moved that Edward B. Gillett, esquire, be allowed to assist the government in the prosecution of the case. Objection being made by the defendants, Mr. Gillett stated to the court that, as he understood it, he was present simply by procurement of the district attorney, without any assurance or expectation of compensation from any private source, and that he would be as free to act impartially in the matter as he should be and as he was when he was acting in the judicial office as district attorney. In answer to interrogatories put by the defendants, it appeared that he was first applied to, to act in the trial, by letter from the private counsel of the bank, and that he afterwards received a letter from the district attorney requesting his assistance. The counsel for the defendants said, inquiringly, "You don't suppose that you stand in such circumstances that you could possibly receive, for the labor you may spend here, any present from the bank?" to which Mr. Gillett (facetiously) replied: "Well, sir, I should not care to have my virtue put to any very strong test, your honor, upon a subject of that sort, of course." To the further question, "Whether he would not consider it an extremely mean bank if it did not pay him?" he said, "I have not formed any opinion upon that subject."

The judge thereupon said that, unless there was something further, he would allow Mr. Gillett to act as desired by the district attorney; it being understood that the district attorney retained the responsible management of the case.

2. It appeared in evidence that, on the night of January 26- 27, 1876, the Northampton National Bank was broken into, and that a large number of valuable securities were stolen from it. It also appeared in evidence that, on the same night, the house of John Whittelsey, the cashier of the bank, was entered by five masked burglars, with dark lanterns, when the different inmates of the house were taken from their several rooms and led into the room occupied by Whittelsey; that, after remaining there a short time, Whittelsey was ordered to dress, and was taken out of the room into the upper hall and there guarded for some time, and then taken down stairs, when the combination of the lock on the vault of the bank was extorted from him by two men whom he claimed to identify as the defendants. Upon his direct examination, Whittelsey stated that he identified them from their general appearance, height, size and form, and especially from their voices; that their voices impressed him more than anything else; that he suspected they might be arrested some time, and he watched them closely; that he noticed particularly Scott's broad shoulders. On cross-examination, the witness stated that there was nothing peculiar about the height, size and form of the defendants differing from other men in the community, excepting that the defendant Scott had a peculiar shrug about the shoulders; that he had noticed this shrug several times at the jail since Scott's arrest, but that he would not undertake to pronounce him guilty from this shrug alone; that he would undertake to identify them by the voice; and, to the question whether there was any peculiarity about the voice, he said he could not answer. The defendant Scott was then asked to stand up and repeat something, which he did, and the witness said he was suppressing his voice. Scott was then told by his counsel "to speak it right out." The judge then said, "I do not think this is competent." The counsel for the defendants contended that he had a right to have the peculiarities of the defendants' voices pointed out by the witness, and that for this purpose the voices themselves were competent to be introduced. The judge ruled otherwise.

3. The government contended, and, against the objection of the defendants, was allowed to show, by one William D. Edson, a witness for the government, that, in the year 1873, Edson, the two defendants and one William Connor formed a general conspiracy to rob banks; that it was a part of their plan and understanding that, in their travels through the country, they should obtain information of such banks as were insecure and feasible for robbery, and should report to each other the results of their observation; that in the summer of 1875, Edson, who was in the employ of Herring & Company, of New York, safe makers, and had been sent by them to Northampton on business of the company, first informed himself of the practicability of robbing the Northampton National Bank, and reported the same to the defendants at Wilkesbarre, Pennsylvania, and then furnished the defendants the means of duplicating the keys of the vault lock; that this was done in pursuance of their general conspiracy before mentioned.

4. The witness Edson was allowed, against the objection of the defendants, to testify as to the details of preparations made for robbing the Northampton National Bank in pursuance of said conspiracy; and he testified, among other things, that after meeting the defendants at Wilkesbarre, and giving them information about the dial and lock of the Northampton National Bank, which was about August 5, 1875, he, with Scott and Dunlap, returned to New York together, and that Scott and Dunlap there practised with the duplicate keys, which Scott had made, on a sample dial which Edson furnished them; that Scott and Dunlap agreed to go to Northampton in a day or two, which they did; that they told him, Edson, they had found where Whittelsey the cashier lived, in what part of the house, and how many there were in the family, &c.; that afterwards there was another meeting, when Connor was also present, and Scott, Dunlap and Connor all agreed to go to Northampton; that they afterwards said they had been there; that they had watched Whittelsey's movements, and those of the watchmen of the bank and of the town; that the witness, at their request, went to Northampton and saw the president and vice-president of the bank, and found that the dials were out of order, and went back to New York and told the defendants and Connor that they had better stop work then, as the bank would be more carefully guarded than usual; that this was in September, and the work was abandoned, and nothing further was done till November; that afterwards, Scott, Dunlap and Connor wanted the witness to come to Northampton and see about the Northampton National Bank; that the witness did so on November 22, and obtained impressions of the key at the bank, and, on his return to New York, gave the defendants the impressions; that he also afterwards found out the combination and gave it to the defendants; that he had five or six interviews with the defendants before the robbery in January. The defendants contended that the attempt to rob the Northampton National Bank in the summer of 1875 was abandoned, and that the evidence of that attempt was inadmissible. The government contended that the attempt was only temporarily suspended, and was resumed again in November. The judge admitted the evidence.

5. The government offered to show, by the witness Edson, that there were words and expressions, well understood by the defendants and Connor and Edson, by which they communicated with the witness Edson and with each other in the prosecution of their work under their conspiracy, through the column of the New York Herald, entitled "personals," and the witness Edson, against the objection of the defendants, was allowed to testify that on January 30, 1876, two "personals" appeared in the New York Herald which the witness claimed and stated were placed there, one by himself, which he explained was for the purpose of having William Connor meet him; and the other placed there by William Connor, which he, Edson, explained as calling for a meeting between himself and Connor on business connected with the robbery. A copy of the New York Herald of January 30, 1876, was produced, and the "personals" identified and read by Edson, as follows: (Edson's "personal") "Idalia, F. N., meet me on the Avenue Monday evening." (Connor's "personal") "Idalia, F. N., 8 sharp." Edson further testified that the defendants, Connor and himself had agreed upon this form of personal, if they wished to see him; and that he met Connor at the corner of 34th Street and Broadway at 8 o'clock Monday evening; that Connor took him to 60th Street and 10th Avenue, where he met Scott, and afterwards Dunlap; and that Connor at this time handed him over about $ 1200, as his portion of the money taken from the safe.

6. The government contended, and offered evidence tending to show that on February 5, 1876, the defendant Scott went by boat from New York to New Haven, with two horses and a sleigh, intending to go thence to Hartford, Springfield and Northampton, for the purpose of obtaining and bringing to New York the securities of which the bank had been robbed, and which had been secreted near the place of robbery; that after Scott's departure, Connor and Edson met in New York, and Edson informed Connor of certain facts showing the danger of going to Northampton at that time, and...