Commonwealth v. Shea

• Decision Date: 12 November 1948
• Citation: 323 Mass. 406,82 N.E.2d 511
• Parties: COMMONWEALTH v. SHEA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

323 Mass. 406

82 N.E.2d 511

COMMONWEALTH

v.SHEA et al.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 12, 1948.

Exceptions from Superior Court, Worcester County; Beaudreau, Judge.

Cornelius A. Shea and one Chesties were convicted of conspiracy to steal certain property, and they bring exceptions.

Exceptions overruled.

Before QUA, C. J., and LUMMUS, DOLAN, RONAN, and SPALDING, JJ.

A. B. Cenedella, Dist. Atty., and J. F. Baxter, Asst. Dist. Atty., both of Worcester, for the Commonwealth.

J. S. Derham, of Northampton, for Chesties.

Nunziato Fusaro, of Worcester, for Shea.

RONAN, Justice.

Shea, a police officer, and Chesties, a wholesale and retail meat dealer, were indicted and tried upon an indictment charging them with breaking and entering a railroad car with intent to steal and the larceny of meat therefrom, the property of the Chicago Dressed Beef Co., Inc., and upon a second indictment accusing them of conspiracy to steal the property of the said company. They were acquitted upon the first indictment and convicted upon the second. The defendants excepted to the denial of motions for directed verdicts of not guilty to rulings on evidence, to the instructions to the jury, and to the manner in which the judge dealt with their requests for instructions.

We first consider the rulings denying the motions for directed verdicts. The correctness of these rulings is to be determined by the facts which the jury might find to have been established by the evidence. Chesties had called upon Shea as many as twenty-five times in the evening at the police station which Shea and other patrolmen used as headquarters in performing their duties in the district in which the station was located. The defendants exchanged money and different papers at this station on a dozen occasions. At times, they met at night at a restaurant near the station. Chesties would sometimes call at the station after midnight, and would leave with Shea and sit and talk in Shea's automobile which was parked near the station.

Two police officers saw the defendants riding in Shea's automobile at 2:40 a. m. on June 16, 1947, proceeding toward the garage occupied by Chesties. This garage, which was hired by Chesties, had four stalls, one of which he used for a meat freeze unit and one for his truck, and the remaining two were vacant. At the time just mentioned, Shea drove his automobile into the garage where both defendants remained for ten to fifteen minutes. The doors of the garage were then opened, and Shea's automobile was driven out on the driveway and Chesties got out. Chesties drove his truck into the garage and then got in Shea's automobile which left in the direction of the police station. Shea was wearing a civilian's coat and hat, although at that time he was supposed to be wearing his police uniform and patrolling his regular route which did not include the location of the garage.

Shea shortly before midnight on June 17, 1947, was placed in charge of the station for the shift which commenced at 11:50 p. m. and ended at 7:45 a. m. on June 18, 1947. Shea assigned Officer Cerrone to patrol route 1 which was Shea's regular route. On this route were located the premises of the Worcester Cold Storage and Warehouse Company. A portion of the street floor of these premises was occupied by the Land O'Lakes Creameries, Inc., hereinafter called the creamery company, and an adjoining portion by the Chicago Dressed Beef Co., Inc., hereinafter called the beef company. Both defendants were familiar with the premises as Chesties had been employed by the beef company for seven years and also by the firm which had previously occupied the premises now occupied by the creamery company, and Shea had also worked for the beef company. Shea had for a number of years observed the premises in the performance of his duties as a police officer. Entrance from the street to the creamery company could be had by going through a door which was the overhead type garage door. He had a key to this door which he returned in May, 1947.

Before Officer Cerrone left the station shortly before 11:50 p. m. on June 17, 1947, he was instructed by Shea to come back to the station at 1:10 a. m. as Shea said he would then need to go out to get some food. Cerrone returned to the station at 1:45 a. m. Shea left in one half an hour thereafter. Cerrone remained at the station until Shea returned at 3:30 a. m. During this time the premises of the beef company were left unprotected by any patrolman covering his route on foot.

There were four freight cars on the siding of the beef company shortly after midnight on the morning of June 18, 1947. Upon inspection by police officers three were found to be empty and the seal on the door of one referred to as the second car was found to be intact. This seal was the flat band type which could have been found to have been placed on the car when it began its journey to Worcester. Shea left the station at 2:15 a. m. At about 2:30 a. m. two police officers hidden under one of the cars saw two men make four or five trips from this second freight car, carrying bundles to the rear door of the creamery company. They were unable to identify them because of the darkness and they were no more distinct than two shadows. Shea was seen to get out of his automobile on Franklin Street in front of the creamery company at about 2:30 a. m. and to walk to the overhead door of the creamery company. There was another person then in his automobile. A citizen who knew Shea stopped to talk with him. A few minutes later Shea's automobile was seen backing out of the entrance to the creamery company where the overhead type of door was. Chesties got into the automobile which was then driven to Chesties' garage. Three police officers soon entered the garage as the defendants were unloading meat from the back of Shea's automobile into the freezing unit. Shea had a box of pork loins marked ‘Morrell’ in his hands. The rear seat of his automobile had been removed and there was a side of beef covered by a canvas in the back of the automobile. In reply to a question from one of the officers as to what he was doing with the meat, Shea said it was none of his business. Another officer then accused Shea of doing this sort of thing right along. Shea said that this was the first time, and when the officer told him that he had seen him driving into the garage two nights previously Shea then said it was his second time. Another officer asked, ‘Are you trying to kid? You have been doing this right along.’ Shea said, ‘This is only the third time.’ Another officer called Shea a vile name, threatened to assault him, and was proceeding to arrest him when another officer intervened upon Shea's begging not to be arrested and said he would give Shea ‘a break if he would stop this kind of stuff.’ Shea ‘offered to split the loot with them’ but the officers said they wanted no part of it.

The officers returned to the freight car, found the seal had been broken, saw six or seven boxes of pork loins marked ‘Morrell’ on the floor which were the same type of boxes and pork loins as they had seen at Chesties's garage, and noticed that three or four hooks were empty where hinds of beef had been hanging. Lamb, veal and hams were strewn on the floor. They closed the door of the car and left it.

Before Cerrone left the station at 3:30 a. m. to resume patrolling his route, Shea told him that he had gone ‘down in back of Chicago Dressed Beef to pick up some meat that was left for me, and as I went up to the garage where Chesties keeps his truck, Frank, Cliff, and Louie [three police officers] accused me of breaking into a car and called me a thief. Officer Annunziata was going to knock my block off, and I tried to tell them where the meat came from, but they did not believe it. * * * What could I do, they caught me red-handed with the meat in Chesties' garage. * * * I'm telling you the truth, Charlie, I didn't break into no car, I am no thief.’

Shea drove Cerrone to the freight car a little after 6 o'clock on the morning of June 18, 1947, and showed him the seal on a freight car on the siding. It was a ball type of seal and looked all right. Shea told Cerrone that he wanted Cerrone to see that the seal was intact as the other police officers would probably cause him trouble. Shea testified that he was familiar with the sealing and unsealing of freight cars. There was evidence that, if a car is partially unloaded by the beef company when its employees quit for the day or if the seal is broken to get something from a car for a customer, seals supplied by one Kennedy, the freight agent of the Boston & Albany Railroad Company, are used to protect the contents of the car. These seals were different from the flat type of seal.

The acquittal of the defendants on the breaking and entering and larceny indictment did not affect the prosecution for a conspiracy to steal. The offences were distinct from and independent of each other. A conviction on either indictment would not bar a conviction on the other, and this would be true even if one indictment had charged the defendant with committing a crime and the second had charged them with a conspiracy to commit the same offence. Commonwealth v. Walker, 108 Mass. 309;Commonwealth v. Bloomberg, 302 Mass. 349, 19 N.E.2d 62;Commonwealth v. Fine, 321 Mass. 299, 305, 73 N.E.2d 250. It is apparent that the jury were not satisfied that the defendants actually broke into the freight car, or committed larceny therein, as the testimony showed that the officers were unable to identify the thieves because of the darkness. The defendants were charged with being principals in the commission of a felony, and the jury had the right to refuseto find that they were present aiding and abetting those who removed the goods from the car. They could believe Shea's statement that the meat was left for him in back of the beef company so, as they could find, that the defendants...