Commonwealth v. Borden

5 Mass. App. Ct. 847 | Mass. App. Ct. | 1977

The defendant was convicted on two indictments charging larceny and unarmed robbery. The sole issue on appeal concerns the denial of his motion for a directed verdict on the robbery indictment. From the evidence most favorable to the Commonwealth it could have been found that the defendant and a female companion entered a store on Summer Street in Boston. The defendant’s companion asked to look at a watch. When the storekeeper unlocked the display case, the defendant reached in and took twelve watches from the case. The storekeeper then moved toward the door to block the exit. As he struggled with the defendant the defendant’s companion removed the watch from the storekeeper’s wrist and took money from his pocket. The defendant shouted to his companion: “Go, go, go. Don’t stay. Don’t stay.” She left the store while the defendant and the storekeeper were still struggling. Shortly thereafter the defendant overpowered the storekeeper and succeeded in leaving the store. The defendant’s motion was properly denied. Even though the defendant’s companion physically took the storekeeper’s watch and money, the question of the defendant’s liability as a principal under the joint enterprise theory was properly submitted to the jury. Commonwealth v. Perry, 3 Mass. App. Ct. 308, 312 (1975). Compare Commonwealth v. Clark, 363 Mass. 467, 472-473 (1973). The defendant was clearly in a position to aid in the commission of the robbery (see Commonwealth v. Drew, 4 Mass. App. Ct. 30, 32-33 [1976]), and in fact did so. His struggles with the storekeeper facilitated the taking of the watch and money by his companion. His instruction to his companion to go further indicated active participation on his part. See Commonwealth v. Blow, 370 Mass. 401, 406-408 (1976). See also Anderson, Wharton’s Criminal Law & Procedure §§ 106-108 (1957). To hold, as the defendant urges, that the defendant, having committed a larceny, was merely trying to make his own escape, and that the contemporaneous robbery of the storekeeper by his companion was a supervening event, inconsistent with and unrelated to the defendant’s actions, would be to create an artificial barrier against inferences of complicity which may naturally be drawn. Commonwealth v. Drew, supra, at 33.

The case was submitted on briefs. Dyanne Klein Polatin for the defendant. Stephen M. Needle, Thomas J. Carey, Jr., Daniel Engelstein, & Barbara A. Blumenthal, Assistant District Attorneys, for the Commonwealth.

Judgments affirmed.