A finding that a police officer was guilty as a principal in the second degree, present, aiding and abetting in the breaking and entering into a cafe by another officer with intent to commit larceny, was not warranted by evidence merely that the other officer and the defendant, who was supposed to be patrolling his beat at some distance, had been parked in the defendant's automobile with a woman at a place from which the cafe was not visible, that, after the hours permitted by law for the purchase of liquor, the other officer, to the knowledge of the defendant, then left the others to get intoxicating liquor which the three were to drink, that the defendant, in reply to a question by the woman respecting the other officer, stated, "He'll be right back," and that the defendant expressed his innocence to a lieutenant and a captain of police after the other officer had been taken into custody in the cafe.
INDICTMENT found and returned on September 7, 1945.
The case was tried before Broadhurst, J.
R. F. Barrett, for the defendant.
G. L. Rabb, Assistant District Attorney, for the Commonwealth.
WILKINS, J. The defendant was convicted on an indictment charging him with breaking and entering the cafe of one Patrick Curtin in Quincy on August 4, 1945, in the nighttime with intent to commit larceny. The defendant excepted to the denial of his motion for a directed verdict of not guilty.
The facts which the jury could have found may be stated briefly. Patrick Curtin was the owner of Rouillard's Cafe at the corner of Copeland and Common streets, Quincy, in which there was a bar with alcoholic beverages in bottles. On two occasions in July, 1945, two such bottles were taken during the nighttime, and on one of those occasions a police box key of the Quincy police department was
found on the floor behind the bar. On August 4, 1945, about 2:30 A.M., one Ralph Moreau, a police officer, on whose tour of duty the cafe was situated, entered by the front door, which had been locked, and while making his way about with a flashlight found himself in the presence of Curtin, and of a captain and of a lieutenant of the Quincy police department, and was taken into custody. In the meantime, the defendant, another Quincy police officer, who was supposed to be patrolling his beat at least two fifths of a mile away, was found seated with a young woman in his own automobile on the premises of a filling station on Center Street at a point over one hundred eighty feet from the cafe. The automobile could not be seen from the cafe, nor the cafe from the automobile. Over an hour before, about 1:20 A.M., the defendant, who was driving his automobile, had met Moreau at Brewer's Corner on Moreau's beat, and about 1:40 A.M. they saw the woman walking away from an altercation between two men, and took her into the automobile to drive her to Quincy Square. The defendant drove to two police boxes which Moreau rang. When passing a cafe known as Lucien's, Moreau said, "I'm going to see a man about a jug," to which the defendant replied, "When are you going to see him, tonight?" and Moreau responded, "Yes. After I ring in my next box." After driving to the Willard School, where Moreau rang a box, the defendant said, "Where do you want to go now, Ralph?" and Moreau said, "To try doors at the gasoline station." They drove two or three blocks to the gasoline station, where the defendant parked his automobile off the street between the pumps and the building. Moreau asked the woman, "How would you like a drink?" to which she responded, "Yes, I'd love it." Moreau left, and the woman asked the defendant, "Where has he gone?" and the defendant replied, "He'll be right back." After a short time the police lieutenant, who had been in the cafe when Moreau entered, appeared and told the defendant to get out of the automobile. The lieutenant said, "I didn't expect to see you here, Bill," and the defendant replied, "Why? What's the matter?"
At police headquarters the captain said, "Bill, I am greatly surprised to see you in this mess." The defendant asked, "What mess, Captain?" The captain answered, "To be involved with Moreau in this break," and the defendant replied, "I don't know what you are talking about, Captain."
The Commonwealth contends that the defendant was a principal in the second degree present, aiding and abetting in the breaking and entering of Rouillard's Cafe with intent to commit larceny. The principle of law is well established. Commonwealth v. Knapp, 9 Pick. 496 , 517-519. Commonwealth v. Chapman, 11 Cush. 422 , 428. Commonwealth v. Lucas, 2 Allen 170 . Commonwealth v. Clune, 162 Mass. 206 , 214. Commonwealth v. Sinclair, 195 Mass. 100 , 110-111. Commonwealth v. Baldi, 250 Mass. 528 , 534. Commonwealth v. Lavery, 255 Mass. 327 , 333. Commonwealth v. Mannos, 311 Mass. 94 , 109-110. But the evidence fails to bring the defendant within it. Undoubtedly the evidence shows that Moreau, to the knowledge of the defendant, had gone to get intoxicating liquor, and it is fairly inferable that all three persons were to drink it. It was also an hour when intoxicating liquor could not be lawfully purchased. See G. L. c. 138, Section 12, as appearing in St. 1935, c. 468, Section 1; Section 15, paragraph 2, as appearing in St. 1938, c. 353. There is nothing, however, to show that the defendant was present, aiding and abetting in breaking and entering the cafe with felonious intent. All this cannot be supplied by the defendant's statement to the woman that Moreau would be right back or from the conversations with the police captain and with the police lieutenant. The denial of the motion for a directed verdict of not guilty was error. Commonwealth v. Altenhaus, 317 Mass. 270 , 273-274, and cases cited. Commonwealth v. Portnoy, 318 Mass. 274 .