COMMONWEALTH vs. THOMAS JOHNSON & others

INDICTMENT, found and returned in the Superior Court in the county of Suffolk on May 11, 1907, under R. L. c. 208, s. 41, charging that Thomas Johnson, John Harris, William Dolan, John Williams, Frederick Dickerson and John Owens on March 24, 1907, at Boston "knowingly did have in their possession certain machines, tools and implements adapted and designed for cutting through, forcing and breaking open buildings, rooms, vaults, safes and other depositories, in order to steal therefrom such money and other property as might be found therein, the said Johnson, Harris, Dolan, Williams, Dickerson and Owens knowing said machines, tools, and implements to be adapted and designed for the purpose aforesaid, and intending to use and employ them therefor."

At the trial in the Superior Court before Bond, J., the jury returned a verdict of guilty against each of the six defendants; and the defendants alleged exceptions, the judge making an order staying the execution of the sentences he had imposed until further order of the court.

The case was submitted on briefs.

J. F. Sweeney j- W. J. Day, for the defendants.

M. J. Dwyer, Assistant District Attorney, for the Commonwealth.

RUGG, J. This is an indictment charging the defendants with knowingly having in their possession burglarious implements and intending to use them as such. The exceptions relate to the admission of evidence and the charge.

1. Four types of cards, all mendicant in character, were received in evidence. They were found in the tenement, which the jury may have found to have been the home of the defendants, at the time of their arrest. These had a slight tendency

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to show the apparent occupation of the defendants or some of them, and may well have a close relation to the preliminary preparations for burglary. They were properly received in evidence.

2. A sergeant of police was permitted to answer, after being cautioned to confine his testimony to particular instances, that a hall, near where the defendants were living, had been broken into and a safe blown about three weeks before, the judge saying that the evidence would be taken, and its competency ruled upon later. It is conceivable that, as bearing upon the intent with which the implements described in the indictment were in the defendants' possession, it might have appeared that the defendants used the same implements in making another break. Commonwealth v. Day, 138 Mass. 186. Although the effect of this evidence would be to show the commission of another crime, it would not thereby be incompetent upon the issue raised by the plea to this indictment. Hence the judge cannot be said to have exceeded his discretion in permitting this evidence to be introduced conditionally. When it was not so connected with the defendants by other circumstances as to make it competent for any purpose, it was then the duty of the defendants to ask the judge to strike out the evidence and to instruct the jury that they were to disregard it. Their failure to do so gives them no ground upon which to support their earlier objection. Brady v. Finn, 162 Mass. 260, 267. Ellis v. Thayer, 183 Mass. 309. Williams v. Clarke, 182 Mass. 316. Putnam v. Harris, 193 Mass. 58, 62.

It is stated in the exceptions that, after one Gleavy testified that a burglary was committed at a certain hall about five minutes' walk from where one of the defendants lived and the window forced, " At this time counsel for the defense objected to the introduction of this testimony, and upon objection being overruled," excepted. "The witness then proceeded to testify " further respecting this burglary, bow chisels were used in effecting an entrance to the building and in opening the cash drawer, and soap put on the edges of the safe door. Another witness without objection testified that one of the ways of blowing open safes, common with burglars, was to pour nitro-glycerine into the crack around the door by means of a cup of soap, and causing it to explode by a fuse. It is doubtful if upon this record the

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defendants have any exception. Apparently they permitted the testimony as to the fact of burglary, its time and place, to go in without saying anything, and at its close, objecting to it. It was then too late to object, if the answers were responsive to the questions. If not, they should have moved to strike them out as irresponsive. The rest of the testimony of Gleavy went in without objection or exception. But the evidence was probably competent upon the single issue of bow the chisel and fuse, found in the house of the defendants, which were lawful implements in themselves, might be used in combination with a common toilet article to effect a successful burglary. It was in the nature of an experiment observed as to its effects by the witness, and admissible within the discretion of the trial court. See Baker v. Harrington, 196 Mass. 339.

3. As the inspector and police officers were entering the tenement of the defendants on the day of their arrest, they met a man who apparently came from this tenement. After the defendants bad been removed to the station house, the wife of the defendant Johnson being in the tenement, an envelope addressed to Johnson was brought by a messenger. It was opened by the wife and handed to Johnson when he came in later, who said he did not know about it. It was then read to him by the witness, a police officer, whereupon Johnson shook his head. The contents of the telegram were not objected to on general grounds, nor as against other defendants than Johnson, but on the narrow ground that Johnson said he did not know anything about it. Manifestly this ground is untenable. Mere denial of knowledge by a defendant does not make evidence against him inadmissible. There was testimony tending to show that the paper was lost, and the Commonwealth was permitted to prove its contents through the witness who read it to Johnson and another who heard it read. To this form of proving the contents of the lost paper the defendants objected. It having appeared that it was impossible to produce the original writing at the trial, secondary evidence in the form of oral testimony of its contents was admissible. [Note p60] Commonwealth v. HeGurty, 145 Mass. 257.

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4. The chief inspector of police was asked to relate a conversation he had with Johnson in the presence of the other defendants. Objection was made to this question, if it was " intended to bring out any admissions, any descriptions, . . . or anything concerning any other offenses. . . ." No request was made, however, that the witness be cautioned and manifestly the objection was too broad. There appeared to be no reason why a confession made by any of the defendants was not competent. The only exception saved was in permitting the " conversation to be related in a narrative form." Construing the exception strictly in the form in which it was saved, it must be overruled. Most conversations are reproduced in evidence in a narrative form, and it is often difficult, if not impossible, for a witness to give it in any other way. Some of the evidence given by the witness in response to the question - for example, that relating to the names, by which the defendants were known - was admissible as bearing upon the identity of the defendants, and as tending to show that they gave fictitious names at the time of their arrest. Commonwealth v. Costello, 120 Mass. 358, 369. In the absence of a specific request from the defendants that the witness be limited in his relation of the conversation to those portions only which were competent, one course open to the judge was to permit the question to be answered in order that he might determine intelligently upon the admissibility of the conversation. It was then the duty of the defendants to ask that the portions, to which they specifically objected, be stricken out, and the jury directed not to consider them. They did not pursue this course, and hence the exception cannot be sustained. Williams v. Clarke, 182 Mass. 316. Commonwealth v. Quinn, 150 Mass. 401. With reference to this evidence as well as that of another burglary in the neighborhood by the sergeant of police above referred to, it would have been better practice for the judge to have required the district attorney to state to him what he expected to prove and how he intended to connect it with the defendants, and if it did not appear competent on this statement, to exclude whatever evidence was incompetent. But on this record it cannot be said that the defendants have a valid exception.

The inspector testified that during his conversation with the

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defendant Owens, his photograph was shown. This photograph of Owens was then exhibited to the jury, it having been taken from the Rogues' Gallery and indorsed with his police history. To the introduction of this photograph an exception was saved, but the attention of the judge was not called to, and no objection was made on account of, what was on the back of the photograph, and it does not appear that the jury saw what was on the back of it. The photograph was admissible on the question of the identity of the defendant Owens. Commonwealth v. Campbell, 155 Mass. 537. Commonwealth v. Morgan, 159 Mass. 375. What was upon the back of the photograph rendered it incompetent to pass into the hands of the jury, if attention had been called to it, but, in the absence of an exception on this ground, the verdict cannot be set aside at this time. Every argument respecting this matter was open to the defendant Owens upon his motion for a new trial.

5. The chief inspector was permitted to testify that the chisel and the bags of cartridges found in the tenement of the defendants were such as were ordinarily used by burglars, and found upon or with them. The defendants' exception to this evidence must be overruled. Commonwealth v. Brown, 121 Mass. 69, 81.

6. The judge properly refused to direct a verdict of not guilty for the several defendants. The admission that several of them lived in the tenement, where they were found, and the appearance of all of them from which the jury might infer that they were at home at the time the officers called, together with the implements capable of being used for committing burglaries, and the quantity of loaded firearms, which orderly citizens do not commonly have, together with the other circumstances appearing in evidence, were enough to warrant a verdict of guilty. Commonwealth v. Tivnon, 8 Gray 375. Commonwealth v. Day, 138 Mass. 186. Commonwealth v. Conlin, 188 Mass. 282.

The charge of the judge respecting possession of the burglarious implements by the several defendants was in accordance with the principles laid down in Commonwealth v. Tivnon, 8 Gray 375. The portion of the charge as to the inferences that the jury would be warranted in drawing from the failure of the defendants to call witnesses on their own behalf was carefully guarded to the extent of preserving their constitutional right

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that no inferences should be drawn from their failure to testify. But as was said by Chief Justice Holmes, in Commonwealth v. Goldstein, 180 Mass. 374, " A defendant has no general immunity from comment on his mode of conducting his defense in a criminal case." Law abiding and industrious citizens, ordinarily, are able to call witnesses, who could give evidence respecting their occupation and residence. The failure of defendants to call such witnesses is a circumstance proper for the consideration of the jury. Commonwealth v. McCabe, 163 Mass. 98. The illustration given by the judge as to the weight, which may be attached to the fact that the defendants were all in one tenement with their coats off, was not open to exception. It was a homely and pertinent test, which the jury were left to use or not, as they might find it applicable to the facts before them. The charge is not given in full, and it must be assumed that adequate instructions were given as to the general subject.

Exceptions overruled.