Commonwealth v. O'Toole

• Decision Date: 08 May 1950
• Citation: 92 N.E.2d 618,326 Mass. 35
• Parties: COMMONWEALTH v. O'TOOLE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

326 Mass. 35

92 N.E.2d 618

COMMONWEALTH v. O'TOOLE et al.

Supreme Judicial Court of Massachusetts, Norfolk.

May 8, 1950

Argued Feb. 6 1950.

E. R. Dewing Dist. Atty., Boston (B. W. Flynn, Ass't Dist. Atty Brockton, with him) for Commonwealth.

F. Juggins, Boston, for defendant DiMattio.

J. F. O'Connell, Jr., Boston, for defendant O'Toole, Jr.

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

LUMMUS, Justice.

The defendantsJohn E. O'Toole, Junior, and Michael DiMattio, were indicted for being accessories before the fact to the murder of Eugene P. Irwin, Junior, at Quincy on December 4, 1947.The defendants were tried, and at the close of the evidence each defendant moved for a directed verdict of not guilty, which motion was denied.The jury found each guilty of being accessory before the fact to murder in the second degree.Each was sentenced to imprisonment for life.G.L.(Ter.Ed.)c. 274, § 2.Each appealed.There was evidence of the following facts.Irwin, a married man of thirty-three years, was a dealer in used automobiles, in partnership with one Hagen, under the name of Irwin Motors, with a place of business at 1285 Dorchester Avenue.He left his house on the morning of December 4, 1947, shortly after ten o'clock.He went to his place of business and saw his partner.He then went to the National Shawmut Bank branch at Upham's Corner, and cashed a check for $4,100, receiving that sum in $50 and $100 bills.About noon he left with one Cavanaugh in his automobile, saying that he was to meet O'Toole to buy a Cadillac automobile.O'Toole telephoned the Irwin Motors about 12:15 P.M. and asked when Irwin was coming into town (Boston) with the money, saying, 'The deal has to be cash.'(But later O'Toole insisted that he had told Irwin to bring a certified check instead.)About eleven o'clock that morning O'Toole and DiMattio were seen together in an automobile near the South Station in Boston, and in the afternoon of that day both were seen in an automobile in Dedham and Canton.

O'Toole testified that prior to December 4he had received a telephone call from one Dave Andrews who wished to sell a 1947 Cadillac automobile; that he talked with Irwin, who said he was interested; that he arranged to meet Irwin on December 4 at a gasoline station in Boston; that Irwin and O'Toole drove to 10 Post Office Square shortly after noon on December 4; that Irwin got out of the automobile to find Andrews; that afterwards O'Toole could not find Irwin, and drove away.There was no direct testimony that Irwin was afterwards seen alive.Both O'Toole and DiMattio denied on the witness stand that they saw each other on December 4.

When Irwin and Cavanaugh arrived in Boston, Irwin got out and got into a Cadillac automobile driven by O'Toole, which could have been found to belong to DiMattio.It could have been found that Irwin wrote the registry number of that automobile, 53661, on a piece of cardboard, later found in his pocket.

On March 29, 1948, the dead body of Irwin was found in deep water in a quarry in Quincy.His skull had been fractured by blows from some blunt instrument.Only five cents in money were found on the body, although he had $4,100 on him in large bills when he disappeared.Around the neck was a handkerchief unusual in character which was identical with two others found in O'Toole's room, which could have been found to belong to O'Toole.

When taken to the Quincy police station, O'Toole refused to say anything until he had seen his lawyer, because, he said, 'I'm in a hell of a spot, and I know it.'At his house, before being arrested, O'Toole declined to tell his whereabouts on the morning of December 4.He directed one Ruth Billings, with whom he kept company to call up his lawyer, 'and don't talk too much and keep your mouth shut.'

In a restaurant about December 15, O'Toole said to a police officer, 'I would have a lot of explaining to do if they found him [Irwin] dead in a quarry or some place.'Shortly after January 2, 1948, DiMattio came to the office of the Cadillac Automobile Company, and then had a $1,000 bill with him.There was blood on the seat covers of DiMattio's automobile after December 4, 1947, some of it spattered in fine drops, and he had the seat covers changed on December 5.When he bought the new seat covers, he gave the name of Libertine instead of his own name.Human blood was found on a jacket belonging to DiMattio.O'Toole drove DiMattio's automobile to a gasoline station, at a time which could be found to have been after December 4, and got permission to change the front seat, and did so.He burned the padding of the old seat.Later he denied having visited the gasoline station in DiMattio's automobile.

The fifth assignment of error of DiMattio and the sixth of O'Toole are to the refusal to direct verdicts for the defendants.Although the conviction of each was based on circumstantial evidence, the evidence was sufficient to warrant it, and a verdict could not have been directed for the defendants.Even if the defendants were present in the vicinity of the murder when it was committed, they might have been accessories before the fact.Commonwealth v. DiStasio,297 Mass. 347, 361, 8 N.E.2d 923, 113 A.L.R. 1133;Commonwealth v. Mannos,311 Mass. 94, 109, 40 N.E.2d 291.

The first assignment of each defendant is to the admission in evidence of the testimony of a police lieutenant named Riley that iron bars found on the body of Irwin were similar to those that could have been obtained on the land of the Pilgrim Diner which was frequented by O'Toole.In his charge, the judge instructed the jury that 'on all the evidence there was nothing which would...