Commonwealth v. Shea

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

323 Mass. 406

82 N.E.2d 511

COMMONWEALTH v. CORNELIUS A. SHEA & another.

Supreme Judicial Court of Massachusetts, Worcester.

November 12, 1948

September 27, 1948.

Present: QUA, C.

J., LUMMUS, DOLAN RONAN, & SPALDING, JJ.

Conspiracy. Evidence, Admissions and confessions, Cumulative evidence.

Error, Whether error harmful. Practice, Criminal, Exceptions: whether error harmful, general exception; Discretionary control of evidence. Witness, Credibility, Cross-examination Contradiction.

Acquittal of defendants, upon an indictment for breaking and entering a railroad car with intent to steal and for larceny of property therein, did not as a matter of law preclude a conviction upon an indictment against them for conspiring to steal the same property, tried at the same time and upon the same evidence.

Proof of an averment, in an indictment for conspiracy to steal, of the identity of the owner of the property sought to be stolen while not essential to conviction, was important evidence in support of the charge of conspiracy.

A conviction of two defendants under an indictment charging a conspiracy to steal certain property was warranted by evidence of intimate relations between them preceding a theft of the property, of their presence in the immediate vicinity of the theft when it occurred, of their possession of the property immediately subsequent thereto, and of admissions by them by conduct and statements.

No reversible error was shown in the admission in evidence, at the trial of an indictment charging two defendants with conspiracy to steal of a written statement by one of them implicating his alleged confederate, although the conspiracy had come to an end before the statement was made, where it appeared that the statement added nothing to testimony, already in evidence, by the defendant making the statement.

No valid exception was saved by counsel for a defendant at the trial of an indictment where he merely excepted to so much of the judge's charge as was inconsistent with the defendant's requests for rulings and failed to respond to a request by the judge to point out particular portions of the charge to which he objected.

A judge presiding at the trial of an indictment, having properly charged the jury that they should consider bias and prejudice of witnesses, was not required to comply with a request by the defendant to instruct the jury that they could disregard entirely the testimony of a witness found to be biased and hostile to the defendant.

No error appeared in a refusal by a judge presiding at the trial of an indictment to permit counsel for the defendant to read, in cross-examination of a witness for the Commonwealth and purportedly for the purpose of contradicting him, questions put to and answers already given by him in direct examination.

In cross-examination of a witness for the Commonwealth at the trial of an indictment, no error appeared in the exclusion of questions designed to show hostility of the witness toward the defendant where that fact was well established by the previous evidence and was not denied by the

Commonwealth.

A police officer, witness for the Commonwealth at the trial of an indictment, whose apparent dereliction of duty in failing to arrest the defendant, another officer, and to report to his superior, had been shown in his cross-examination to discredit him, properly was allowed to explain such failure.

INDICTMENT, found and returned on October 21, 1947, charging that the defendants Cornelius A. Shea and Bernard W. Chesties on June 16, 1947, did conspire together to steal meat, the property of Chicago Dressed Beef Co., Inc.

The indictment was tried before Beaudreau, J., with an indictment, found and returned on August 19, 1947, charging that the same defendants on June 18, 1947, did "break and enter in the nighttime" a railroad car "with intent therein to commit larceny" and "did steal" "meat . . . the property of Chicago Dressed Beef Co., Inc." The defendants were found not guilty on the indictment for breaking and entering and larceny, and guilty on the indictment for conspiracy to steal; and alleged exceptions.

Nunziato Fusaro, for the defendant Shea. J. S. Derham, for the defendant Chesties.

A. B. Cenedella, District Attorney, (J.

F. Baxter, Assistant District Attorney, with him,) for the Commonwealth.

RONAN, J. 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...