COMMONWEALTH vs. CLAUDE HARRISON.

GRANT, J. Arson of a building (G. L. c. 266, Section 2, as amended by St. 1948, c. 43, Section 2) is a lesser included offence within arson of a building with intent to defraud or injure its insurer (G. L. c. 266, Section 10, as appearing in St. 1932, c. 192, Section 7). Commonwealth v. Shuman, 17 Mass. App. Ct. 441, 449-451 (1984). The Commonwealth, apparently unmindful of that proposition, secured indictments of the defendant for both offences and put him to trial on both indictments. The evidence in support of both indictments was identical and disclosed that the defendant had lured an employee into setting fire to the defendant's variety store. The lure consisted of the defendant's promise of a share of the anticipated insurance

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proceeds. The defendant moved without success for a required finding of not guilty (Mass.R.Crim.P. 25[a], 378 Mass. 896 [1979]) at the close of the Commonwealth's case and again at the close of all the evidence.

In his charge to the jury, the judge gave separate explanations of the elements of the offences set out in G. L. c. 266, Sections 2 and 10, respectively. Each explanation was prefaced by a reading of the relevant statutory provisions through the words "shall be punished." Immediately following his reading of the quoted words from Section 10, the judge advised as follows: "Now . . . I have used the words `shall be punished' twice. . . . The matter of punishment is of no interest to you. You are to deal solely with the facts in this case and not concern yoursel[ves] one way or another with considerations of sympathy in respect to the issue of punishment." The judge then instructed the jury to return a separate verdict on each indictment. He was not requested to, nor did he, give an instruction on the doctrine of lesser included offences or any instruction designed to avoid the possibility of duplicitous or inconsistent verdicts. There was no objection by either side.

Not long after commencing their deliberations the jury sent in the following question: "On the indictment of fraud, the wording is similar to the indictment of arson. On charge of fraud, there contains similar charge of arson. Can you clarify?" The following occurred in the course of a bench conference on how the question should be answered: "THE JUDGE: Obviously, if there is a verdict of not guilty on arson, I do not see how a verdict of guilty of burning with intent to defraud would stand. Judgment NOV, wouldn't it? DEFENSE COUNSEL: That's right. THE PROSECUTOR: Judge, the jurors can come up with almost any verdict." The judge thereupon advised the jury, among other things, that "these two charges are separate and distinct and they hang independently of each other" and that "they have separate and distinct elements. Indictment 049095 has the additional element which must be shown by proof beyond a reasonable doubt that the building was at the time of the fire insured." Again, there was no instruction designed to avoid duplicitous or inconsistent verdicts. Both counsel pronounced themselves satisfied with the further instructions.

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As the reader may have surmised by now, the jury brought in verdicts of not guilty of arson and guilty of arson with intent to defraud the insurer. Neither counsel appears to have perceived any problem. [Note 1] The judge was not asked to, nor did he, give the jury any instructions with respect to the question of inconsistent verdicts which might have been resolved by the jury in the course of further deliberations. Contrast Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 31-36 (1984). He simply allowed the clerk to affirm and record the verdicts. The judge excused the jury and deferred sentencing in order to provide time for further consideration of the problem raised by the verdicts. The defendant interposed a timely motion under Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), for a required finding of not guilty on the indictment for arson with intent to defraud the insurer.

The transcript of the next hearing discloses that the judge and counsel were by then aware of the Shuman case. There was no discussion of whether the evidence was sufficient to warrant a finding of guilty on the indictment for arson with intent to defraud, which was the question raised by the defendant's motion. The only discussion was directed to the question of what should be done about the inconsistent verdicts. Several days later, the judge placed an endorsement on the defendant's motion by which he ordered the entry of a judgment of acquittal on the indictment for arson with intent to defraud because the jury had acquitted the defendant of the lesser included offence of arson. The reasoning appears to have been that if the defendant was not guilty of arson, he could not be guilty of arson with intent to defraud. The Commonwealth appealed. [Note 2]

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The ruling complained of was erroneous. "Inconsistency of verdicts in criminal cases is not a matter for judicial inquiry." Commonwealth v. Therrien, 383 Mass. 529, 537 (1981). The cases of both our appellate courts have uniformly held that factual inconsistencies in verdicts rendered in the same case do not afford a ground for setting aside a conviction. [Note 3] See, e.g., Commonwealth v. Walsh, 255 Mass. 317, 319-320 (1926); Commonwealth v. Scott, 355 Mass. 471, 475 (1969); Commonwealth v. White, 363 Mass. 682, 682-684 (1973); Commonwealth v. Bowman, 373 Mass. 760, 762 n.2 (1977); Commonwealth v. McCombe, 5 Mass. App. Ct. 842, 843 (1977); Commonwealth v. Diaz, 19 Mass. App. Ct. at 31-33; Commonwealth v. Lowe, 21 Mass. App. Ct. 934, 935 (1985). [Note 4] The Walsh, White and McCombe cases all presented factual inconsistencies closely resembling the one in this case. [Note 5]

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The required finding of not guilty entered on indictment no. 049095 is set aside, the verdict of guilty is to stand, and the defendant is to be sentenced on that indictment.

So ordered.