COMMONWEALTH vs. JOSEPH T. DOUGHERTY, JUNIOR (and two companion cases [Note 1]).

WHITTEMORE, J. The defendants have appealed under G. L. c. 278, Section 33B, from judgments of guilty of murder in the second degree of Michael Koza and of conspiracy with each other and with Anthony Polcaro (deceased after conviction) to assault and beat Koza.

1. There was no error in denying the motions for directed verdicts.

There was evidence, appropriately limited, when admitted, to the cases to which it applied, as follows: Polcaro was actively hostile to Koza (a man of seventy-one years) and wished to have him beaten and his limbs broken. Polcaro met with Dougherty on October 9, 1959, and arranged for the beating, offering Dougherty $200, and later he pointed out to Dougherty the location of Koza's apartment. Dougherty said, "Don't worry, Tony [Polcaro]. I will take care of it." Dougherty and Kiley were at a restaurant in the neighborhood on the evening of Saturday, October 10, about 8 P.M., and at that time Dougherty was conventionally

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dressed but, when observed in the same place at about 9:30 or 9:45 P.M. by the same witness, his shirt was hanging out and his hair was in disarray, so that the witness asked if he had been in a fight. Kiley was not then with him.

On Sunday, October 11, in the afternoon, the two defendants called on Eugene D. Benoit and Albert D. Luce. Dougherty in the presence and hearing of Kiley said that "they had beaten up an old man the night before." "For all I know he might be dead." "We were wearing stocking masks." Dougherty asked who knew of it other than Benoit and Polcaro, and said, "If you or anybody else says anything about it, we'll put you right next to the old man." Kiley said nothing. The defendants were seen together elsewhere on October 11. At a later meeting on October 11, in a bar, Dougherty, in Kiley's presence, said to Luce "If you know anything about what we were talking about, I'd keep your mouth shut, or we'll put you right next to the old man," and shortly thereafter when Benoit had joined the group and said to Dougherty "I want to talk to you, Joey," Kiley said to Benoit, "You won't be satisfied until you get all of us in the can." The body of Koza was found in his apartment on October 12, 1959. His death resulted from "blunt injuries." There were over fifty-two injuries on his body. He died at least sixteen hours and not over forty-eight hours prior to 4 P.M., October 12, 1959. There was evidence of human blood on wearing apparel which belonged to Dougherty and Kiley, not shown to have been worn on the evening of October 10, and evidence of admissions in conversation in the police station which was overheard by a microphone. Apart from these admissions and the testimony of human blood found on the defendants' wearing apparel there was evidence to take the cases to the jury.

The trustworthiness of witnesses who told of the talks of Kiley and Dougherty with Benoit and Luce was in issue, but the weight to be given their testimony was for the jury. Kiley, although he said almost nothing, was, in effect, admitting what Dougherty said in his presence of their criminal

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actions which he did not deny, and this admission was of course enough to incriminate him as a murderer and conspirator with Dougherty. His presence with Dougherty on the evening of the crime and thereafter was significant. A fortiori, there was sufficient evidence in the cases against Dougherty.

If the jury found a conspiracy on the admissions already referred to, there was, as the case was submitted, the following additional evidence against each defendant under the conspiracy indictments: The defendants called at Polcaro's home on Sunday morning. They then said that "they had beat up Mike Koza . . . they needed money to go away" and if he did not give it to them or if he squealed they would "put . . . [him] right next to Mike in the grave."

This evidence was in police officers' testimony of admissions by Polcaro. When given, the judge instructed that it was limited to the cases against Polcaro. At the close of the government's case, however, the district attorney moved orally that the court then charge the jury that all such statements could be used against all defendants. The judge said that the motion was too broad as it would include statements after arrest when the conspiracy must have ended, but that the district attorney might renew the motion with specific reference to the evidence. After the evidence closed and just before the arguments on the motions for directed verdicts the judge asked for the "list or statement of [the] evidence." The district attorney said that he then had only the page references. The judge said, "Will you prepare it and . . . give it to me as soon as you can." He also indicated that opposing counsel might have copies. The next reference to the matter in the transcript is in the judge's charge. The judge, after stating that it was for the jury to find if there was a conspiracy and when it began and ended, instructed in substance that, notwithstanding limitations placed upon the admissibility of evidence, any statement made or act done by any defendant after the making of the conspiracy, if made or done in furtherance thereof and before its objective was accomplished and the

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conspiracy terminated, might be considered as evidence against all other parties to the conspiracy.

There was no objection to the charge in this aspect. In the circumstances we think that the motions for directed verdicts were argued in contemplation of such ruling as the judge might thereafter make in respect of removing the limitations on evidence, and that, on the ruling in the charge, the talk in Polcaro's house on Sunday was before the jury if it found that there was a conspiracy which had not then ended. On the evidence the jury could have so found. The jury could have found the conspiracy continuing at least through the time when the actors called on the instigator to be paid for their acts. See Commonwealth v. Stuart, 207 Mass. 563, 567.

2. The defendants upon arrest on October 13, 1959, were placed in the Pittsfield police station in cells with barred openings at the front and separated by one intervening cell. No one else was in the cell block. A microphone had been so hidden that their ensuing conversation was carried upstairs to a speaker. Officers recorded the talk and all of it was read into evidence including foul language with which the significant phrases were interspersed. These words, inter alia, were recorded: "That . . . Kincard . . . [Kenneth F. Card, Junior, was a police officer who testified to seeing Polcaro and Dougherty together on October 9] knows we did it. . . . What the . . . did he say we did it for? . . . We've been in a lot of jams and never done anything this crazy to kill somebody. . . . They can't charge us with murder until we go to court. . . . We'll beat this. Don't worry about that. . . . Hey, Joe. Yes. Didn't happen until Sunday night. They're . . . [equivalent of thwarted] right there. . . . They ain't got any proof we did it. . . . [T]hey can't charge us with murder. . . . I don't think they really got the evidence. . . . They ain't got nothing on us. Want us to plead guilty to something we didn't do. . . . What kind of evidence they holding us on? Holding us on what Polcaro said. He said we'd do the same to him, we did to the other guy. I told them I

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asked him for a couple of bucks. He said he didn't have it. . . . [Foul characterization] knows we did it, too." "Ain't going to charge us no phoney murder."

General Laws c. 272, Section 99, as in force in October, 1959, made it a penal offence to attempt to overhear (without official permission not obtained in this case) "spoken words in any building by using a device commonly known as a dictagraph or dictaphone . . . or any similar device or arrangement . . .." Section 101, however, provided that "nothing contained in this section or sections ninety-nine and one hundred shall render it unlawful for any person to install and use such a device on premises under his exclusive control." See Matter of Ruby, 328 Mass. 542, 544.

The judge, speaking prior to Mapp v. Ohio, 367 U.S. 643, ruled, in accordance with the then controlling cases, that evidence, if illegally obtained, was not thereby barred. See Commonwealth v. Wilkins, 243 Mass. 356, 358-362, and cases cited; Commonwealth v. Noxon, 319 Mass. 495, 543.

We need not determine to what extent the use of the microphone in the police station would be made unconstitutional by a violation of G. L. c. 272, Section 99. That statute was not violated. The installation was in "premises under . . . [the] exclusive control" of the department, and the exception of Section 101 was applicable. The head of the department was the person in exclusive control and, in the absence of a showing to the contrary, he was responsible for the installation and use of the listening device.

The use of the listening device did not violate the Fourth Amendment. Olmstead v. United States, 277 U.S. 438. Goldman v. United States, 316 U.S. 129, 134. On Lee v. United States, 343 U.S. 747. There was no physical invasion of a constitutionally protected place, as in Silverman v. United States, 365 U.S. 505, which distinguished and declined to reconsider the earlier cases. In the On Lee case, supra, the petitioner's self-incriminating statements were made ("while at large on bail pending trial," pp. 748-749) in the customer's room of the petitioner's laundry, in a conversation with an undercover agent. The talk was overheard

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by an agent outside the premises by means of a transmitter concealed on the person of the undercover agent.

A police station cell is for the present purpose in no respect like a house or office, barring its use for such a confidential conversation as that of an accused with counsel. That a defendant may expect to be observed and overheard is confirmed by the open front of the cell, blocked only by bars, which made possible the conversation between these defendants. Our decisions that evidence is admissible which is obtained by surreptitiously listening to conversations in a place of confinement after arrest (Commonwealth v. Wakelin, 230 Mass. 567, 574 [dictograph]; Commonwealth v. Sacco, 259 Mass. 128, 141) are unaffected by the Mapp and Silverman cases.

We discern no basis for referring to the Fifth Amendment. Adamson v. California, 332 U.S. 46, 50-54. Olmstead case, supra, p. 462 ("There was no . . . compulsion . . .. Our consideration must be confined to the Fourth Amendment"). As to evidence obtained by coercion, see Rochin v. California, 342 U.S. 165. Compare Irvine v. California, 347 U.S. 128; Breithaupt v. Abram, 352 U.S. 432.

No question of the obligation of a State to provide imprisoned defendants with a place for confidential communication is presented. See State v. Lanza, 10 App. Div. 2d (N. Y.) 315; affd. 9 N. Y. 2d 895, 10 N. Y. 2d 748; cert. granted, sub nom. Lanza v. New York, 368 U.S. 918.

Some of the overheard remarks were in the context ascribable to one defendant or the other. It is not a circumstance requiring exclusion that all could not be, for acquiescence by continuing the conversation, in a way which showed the acceptance of the implications, made the admission of the speaker also the admission of the hearer. Commonwealth v. Machado, 339 Mass. 713, 715-716. This is no less so because the replies "susceptible of being interpreted as an admission or one not likely to be made by an innocent man" (Commonwealth v. Madeiros, 255 Mass. 304, 313) were made by persons under arrest. Ibid. Commonwealth v. Lucas, 332 Mass. 594, 598.

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3. There was no error in allowing the officers to read the transcript of the defendants' talk. If present recollection was not revived (see Guiffre v. Carapezza, 298 Mass. 458) the judge, nevertheless, in his discretion could permit the witness to incorporate in his testimony the contents of "a writing expressive of his past knowledge," Bendett v. Bendett, 315 Mass. 59, 64, and allow the writing itself to be put in evidence. Fisher v. Swartz, 333 Mass. 265, 268-270. There was notice before the reading that the statement would include "strong" language and no motion was made to exclude such. Perhaps in the judge's discretion the foul language could have been excluded without material effect. See Fisher v. Swartz, 333 Mass. 265, 270. We see, however, no abuse of discretion.

There is nothing in the contention of the defendant Dougherty that the judge was obliged to instruct that the notes were incomplete, lacking in voice intonation, and may have been sarcasm or exclamation. The notes spoke sufficiently on these points.

4. There was no invasion of the defendants' rights in the use of the questionnaires which were sent by the probation officer to prospective jurors and which, as replied to, disclosed matters of personal history. The information was made available to all counsel. There is no showing of any improper influence or intimidation of prospective jurors. Commonwealth v. Cero, 264 Mass. 264, 273-276. Commonwealth v. DiStasio, 294 Mass. 273, 281-282. Commonwealth v. Sherman, 294 Mass. 379, 385-386. See Commonwealth v. McCann, 325 Mass. 510, 511.

5. There is nothing in the contention that the Commonwealth failed to establish causation. The inference was open that beatings by the defendants had caused the death even if it ensued some time later.

6. The instructions on circumstantial evidence may not be attacked because more extended and detailed than counsel thinks essential.

7. Although no exception was taken, we note that it would appear within the judge's discretion to admit the testimony of Dr. Arthur J. McBay of blood stains on wearing

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apparel of the defendants. The testimony was of slight force because it was not shown that the articles were worn by these defendants at the time of the crime but this went to its weight. It is to be noted that these are not now capital cases and we do not have on these appeals the broad power given by G. L. c. 278, Section 33E. Commonwealth v. Capalbo, 308 Mass. 376, 385. Commonwealth v. Coggins, 324 Mass. 552, 556. Commonwealth v. Vaughn, 329 Mass. 333, 339-340.

Judgments affirmed.