Commonwealth v. Asherowski

Oct 15, 1907

Versions:

Sheldon, J.

This case went to the jury upon the third and fourth counts, and the jury convicted the defendants only upon the fourth count, which charged the defendants as accessories before the fact' to a principal whose name was unknown to the grand jury; and the defendants’ exceptions raise the question whether it was competent for the jury to return a verdict оf guilty upon this count. The count charges that some person unknown did burn certain cloth and garments which were insured in the Franklin Insurance Company against loss or damage by fire, with intent thereby to injure the said insurers; and that these defendants procured, etc., the said unknown person to commit that felony.

We agree with the defendants that in order to convict them it was nеcessary to prove that some person had committed the principal felony charged, had, that is to say, burned these goods with the specific intent to injure the insurers thereof. R. L. c. 208, § 10. Commonwealth v. Goldstein, 114 Mass. 272. People v. Henderson, 1 Parker, Crim. (N. Y.) 560. Staaden v. People, 82 Ill. 432. People v. Schwartz, 32 Cal. 160. Queen v. Bryans, 12 Up. Can. C. P. 161. The intent ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to injure the insurer is a *346necessary ingredient of the crime described in R L. c. 208, § 10; and unless the person who did the burning is shown to have acted with that intent, the crime is not prоved to have been committed. And these defendants, who are charged in the count before us only as accessories before the fact, could not be«convicted unless it was proved that the principal offence was in fact committed in violation of the statute. Commonwealth v. Adams, 127 Mass. 15, 17, 19. Commonwealth v. Glover, 111 Mass. 395. Commonwealth v. Phillips, 16 Mass. 423. Even though the defendants may have procured this fire to be set, yet if the рerson who set it, though acting by their .procurement, was in fact wholly ignorant of the insurance, and had no actual intent to injure the insurer, he acted innocently so far as this chargе is concerned, and could not be found to have committed the offence charged in the indictment. These defendants, in .that event; very likely may have committed a substantive crime; it may well be that they could themselves be held to be guilty of the offence which they would thus have committed by an innocent hand. Commonwealth v. Hill, 11 Mass. 136. But they could not be convicted as. accessories before the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍fact tp a felony which had not been actually committed.

The complaint now made by the defendants, however, is that the court refused to order thеir acquittal. None of the instructions actually given are stated in the bill of exceptions ; and it must be presumed that full and accurate instructions were given to the jury upon all the quеstions raised at the trial, if it was proper to submit the case to them at all. Accordingly the only question before us is whether the jury had a right to return a verdict of guilty upon the fourth count of the indictment.

It is earnestly and ably argued by counsel for the defendant that there was absolutely no evidence that the person who set the fire had any knowledge that the prоperty was insured, or had any intent by means of the fire to injure the insurer. Undoubtedly there was no direct evidence of these facts; but if there was circumstantial evidence from which thеy might have been in-' ferred by the jury, that was sufficient. Even in capital cases, convictions resting either entirely or mainly on circumstantial evidence have been sustained by this court; аnd it has been left to the jury to determine whether that evidence came up to the *347stringent standard contended for by the defendants ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍under the rules laid down in Commonwealth v. Webster, 5 Cush. 295; Commonwealth v. Tucker, 189 Mass. 457; Commonwealth v. Best, 180 Mass. 492, 496; Commonwealth v. Umilian, 177 Mass. 582; Commonwealth v. Williams, 171 Mass. 461, 462. This was substantially the ruling given in Commonwealth v. Gilbert, 165 Mass. 45, 49, in which a conviction resting upon circumstantial evidence was sustained. As was said by Holmes, J., in Commonwealth v. Doherty, 137 Mass. 245, 247, “ When a material fact is not proved by direct testimony, but is left to be inferred from the facts directly sworn to, the inference need not be a necessary one. There is a case for the jury, unless the inference either is forbidden by some special rule of law, or is declared unwarranted because too remote, according to the ordinary course of events. If there is a case for the jury, they are at liberty to use their general knowledge in determining what inferences are established beyond a reasonable doubt; and the facts inferred by them are as properly proved as if directly testified to.”

Upon the evidence stated in the bill of exceptions, the jury were fully warranted in finding that the fire set in the defendants’ store shortly before one o’clock in the morning was of incendiary origin. The testimony as to thе fire traps found in the basement was amply sufficient for this purpose. Indeed we do not understand the defendants to deny this. And in view also of the testimony as to the keys of the store; of the evidence that when the firemen arrived at the building all the doors were locked and all means of entrance to the building closed, and that there was nothing to indicate that а forcible entry had been made; that a large part of the defendant’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍stock in trade had been brought into the basement where the fire traps were set in such a manner as tо make possible an inference that it had been intended to lay the foundation for a magnified claim of loss; that both the building and the stock, furniture and fixtures were insured much beyond their rеal value; that after the fire and before their arrest the defendants filed proofs of loss with the insurance company for a grossly exaggerated amount; and in view also оf the conduct of both the defendants before and after the fire and of one of them while it was burning, it seems manifest to us that the jury had a right to draw the inferences that *348the defendants had a guilty connection with the fire; that they must either have set it themselves or procured it to be set by some confederate. It might have been found not only that the defendants had аmple opportunity to do this, but* that no one else could have done it without their privity. Commonwealth v. Umilian, 177 Mass. 582, 583. And if the jury accepted, as they had a right to accept, the claim of the defendants that neither one of them was present at the store when the fire was set, the inference might well be drawn that they had procured it to be set by another. Doubtless there was testimony also from which the jury might have drawn inferences more favorable to the defendants; but the only question before us is whether they could find against the defendants, and we cannot consider any question of the weight of the evidence.

And we are of opinion that the jury might also find that the person who set the fire had knowledge of the insurance and acted for thе ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍purpose of injuring the insurer. There is a presumption that all men intend the natural and probable consequences of their acts. Commonwealth v. Hersey, 2 Allen, 173, 179. The jury might have found that whoever set this fire acted by the procurement of the defendants; that he knew that it was set on the premises of the defendants, where they carried on business as dealers in clothing, and for the purpose of destroying their stock and other property; that he made careful preparations, by the construction and location of six fire traps in the basement, for what hе expected to be an immediate and furious outburst of fire; and that he brought into the basement, into contiguity with those fire traps, a large quantity of the defendants’ stock in trade, so as to lay the foundation for the claim of a large loss of property; that these preparations must have consumed a considerable time, and indicated that the person who made them relied upon the defendants to see that he was not interfered with while making them; and that they were calculated to produce a large loss of property and probably would have so resulted but for the fact that in the construction of the fire traps an excessive quantity of oil had been brought into close juxtaposition with the matches used. It is difficult to account for what the jury might find to have been done by this unknown incendiary by any other explanation than that he was laying the foundation for a large *349and рerhaps a largely fictitious claim upon insurers of the property; and the jury were warranted in finding that this was the explanation of his conduct, that he knew of the insurance ánd was doing what he did for the purpose of injuring the insurance company by leading it to pay to the defendants upon an unfounded claim to be made by them a large sum of money in pretended satisfaction for their loss. This was enough. His intent to injure the insurance company was no less real if he expected to compel it to pay money to the defendаnts than if he expected to receive it himself; nor is there anything at variance with this in Heard v. State, 81 Ala. 55, relied on by the defendants. Accordingly, we are of opinion that the jury were warranted in finding that the principal felony was committed as charged in the indictment, and that the defendants were accessories before the fact to its commission.

The exceptions to the refusal of the court to require the government to elect on which count it would rely, and to the refusal to rule as matter of law that the verdicts of guilty on the fourth count must be set aside and were not warranted by law, have not been argued; and we treat them as waived. Plainly neither of these exceptions could be sustained.

Exceptions overruled.