Commonwealth v. Welansky

• Citation: 55 N.E.2d 902,316 Mass. 383
• Parties: COMMONWEALTH v. BARNETT WELANSKY (and a companion case against the same defendant).
• Decision Date: 05 June 1944
• Court: United States State Supreme Judicial Court of Massachusetts

316 Mass. 383

55 N.E.2d 902

COMMONWEALTH

v.

BARNETT WELANSKY (and a companion case against the same defendant).

Supreme Judicial Court of Massachusetts, Suffolk.

June 5, 1944

February 7, 1944.

Present: FIELD, C.

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

Homicide. Wanton or Reckless Conduct.

Building. Fire. Corporation, Corporate entity, Officers and agents. Pleading Criminal, Indictment. Practice, Criminal, View, Discretionary control of evidence. Evidence, Photograph, Competency. Words "Wilful," "Wanton," "Reckless.

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At the trial of an indictment charging the defendant with manslaughter in wantonly and recklessly failing to fulfil his duty to use reasonable care to keep the premises of a night club, to which he invited the general public, safe for their use, the mere fact, that the defendant had been absent from the premises for twelve days preceding a fire where deaths occurred owing to a failure to furnish proper exits in the event of a fire, did not require a verdict of not guilty where there was evidence that he was solely responsible for the "system" at the club before his absence, that there had been no change in conditions at the club during his absence, and that he "knew . . . the same system [he] had would continue" during his absence.

A count in an indictment which followed the form for "Manslaughter" appended to G. L. (Ter. Ed.) c. 277, Section 79, properly might be used in a case of involuntary manslaughter.

No error appeared in the denial of motions to quash indictments charging the defendant with manslaughter in wantonly and recklessly failing to fulfil his duty to use reasonable care to keep the premises of a night club, to which he invited the general public, safe for their use, as a result of which deaths occurred on the occasion of a fire, where the indictment, read with specifications by the Commonwealth giving details of such failure, apprised the defendant of the crime charged sufficiently to comply with art. 12 of the Declaration of Rights and fairness to him.

Wanton or reckless conduct as the basis of conviction under an indictment for manslaughter against one in control of premises to which he has invited the public as business visitors may consist of intentional failure to care for their safety in disregard of their right to such care or in disregard of probable harmful consequences to them of such failure.

The use of the word "wilful," prefacing the words "wanton" and "reckless," blurs the concept of wanton or reckless conduct. Per LUMMUS, J. Discussion by LUMMUS, J., of wanton or reckless conduct.

At common law in this Commonwealth, conduct resulting in death does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wanton or reckless conduct. Per

LUMMUS, J.

One, who by his wanton or reckless conduct causes injury to another which results in his death, may be found guilty of manslaughter.

To establish guilt under an indictment charging one in control of a night club with manslaughter of patrons whose lives were lost when a fire occurred on the premises and they were unable to escape because of insufficiency of the exits, the Commonwealth was not required to prove that the defendant caused the fire by wanton or reckless conduct, but only that the deaths resulted from his wanton or reckless disregard of the safety of his patrons in the event of fire from any cause.

No error appeared in ordering a view by the jury trying an indictment for manslaughter resulting from a destructive fire in a night club although over three months had passed since the fire, or in admitting in evidence photographs of the premises taken after the fire, where it appeared that material changes from conditions before the fire could have been shown by evidence.

At the trial of an indictment for manslaughter for deaths occurring through a fire in a night club owned by a corporation, the admission of evidence, offered in chief by the Commonwealth, that the defendant was in complete control of the corporation and the premises, including testimony that he gave orders to the corporation's clerk to make and attest records and returns of imaginary meetings and votes, disclosed no error where the matter of control was a live issue in the case until the defendant admitted complete control while testifying in his own behalf.

One who was in complete control of a corporation might properly be indicted and convicted of manslaughter resulting from wanton or reckless conduct on his part although the corporation also might have been indicted and convicted therefor.

Evidence, at the trial of an indictment for manslaughter against one in control of the construction and maintenance of a night club, that the defendant deliberately failed to instal fire doors called for on plans of the premises approved by the municipal building department was properly admitted, with other evidence showing deliberate failure of the defendant to care for the safety of his patrons by providing proper exits in case of fire, as showing wanton or reckless conduct on his part causing the death of numerous patrons through a fire occurring in the club.

The admission of evidence of defective wiring as part of the evidence introduced in chief by the Commonwealth at the trial of an indictment against one in control of a night club for manslaughter resulting from a fire on the premises, was proper at the time of its admission and disclosed no error although the Commonwealth subsequently failed to introduce any evidence that the defendant knew or had reason to know of such defect or that it had any causal relation to the fire.

INDICTMENTS found and returned on December 31, 1942, charging manslaughter.

The indictments were tried before Hurley, J., on March 16 to April 10, 1943, inclusive. After conviction the defendant appealed, filing one hundred twenty-four assignments of error. Among such assignments were the following:

106. The refusal to give the following instruction requested by the defendant: "The fact that the fire started in the New Cocoanut Grove, Inc. is not evidence that it was started by the defendant, nor is any criminal liability for the fire attached to the defendant solely because he was an officer of the corporation."

108. The refusal to give the following instruction requested by the defendant: "If the death or deaths of the persons named resulted from the fire, and the fire was started by someone other than the defendant and not because of the defendant's acts or failure to act, then he must be found not guilty."

111. The refusal to give the following instruction requested by the defendant: "If the jury finds that the acts or omissions of the defendant, even though wanton and reckless on his part, were not the cause of the fire, and the fire caused the deaths . . . the defendant must be found not guilty."

105. The denial and refusal to grant the motion of the defendant that the court direct the jury to return a verdict of not guilty as to each count submitted to them.

109. The refusal to give the following instruction requested by the defendant: "If the jury finds that the deceased . . . were unable to make their way to any door or window, or any exit, by reason of being overcome by fire, flame, heat, smoke or gases, it cannot be found that the defect, if any, of egresses was the proximate cause of the deaths.

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114. The refusal to give the following instruction requested by the defendant: "Unless you find on all the evidence that any reasonable man would have foreseen or anticipated that the fire in New Cocoanut Grove would be started and act as you find it acted, the defendant cannot be convicted of causing the deaths."

122. An instruction to the jury in the charge that they could consider, and should so do, the state of mind of the defendant, not at the time the calamity occurred, on November 28, 1942, "but for any period of time prior thereto in determining whether or not . . . [his] conduct indicated an utter indifference to the rights of parties as if those rights did not exist."

The cases were argued at the bar in February, 1944, before Field, C.J., Donahue, Lummus, Dolan, & Ronan, JJ., and after the retirement of Donahue & Cox, JJ., were submitted on briefs to Qua & Spalding, JJ.

D. J. Gallagher, (H.

F. Callahan, E.

M. Dangel, T. N. Creed, & A. C. Webber with him,) for the defendant.

F. T. Doyle, Assistant District Attorney, (J.

K. Collins & A.

H. Salisbury, Assistant Attorneys General, with him,) for the Commonwealth.

LUMMUS, J. On November 28, 1942, and for about nine years before that day a corporation named New Cocoanut Grove, Inc., maintained and operated a "night club" in Boston, having an entrance at 17 Piedmont Street, for the furnishing to the public for compensation of food, drink, and entertainment consisting of orchestra and band music, singing and dancing. It employed about eighty persons. The corporation, its officers and employees, and its business, were completely dominated by the defendant Barnett Welansky, who is called in this opinion simply the defendant, since his codefendants were acquitted by the jury. He owned, and held in his own name or in the names of others, all the capital stock. He leased some of the land on which the corporate business was carried on, and owned the rest, although title was held for him by his sister. He was entitled to, and took, all the profits. Internally, the corporation was operated without regard to corporate forms, as though the business were that of the defendant as an individual. It was not shown that responsibility for the number or condition of safety exits had been delegated by the defendant to any employee or other person.

The defendant was...