265 Mass. 119 | Mass. | 1928
The defendant was indicted and convicted under G. L. c. 266, § 15, of the crime of breaking and entering in the night time the dwelling house of one George B. McCallum with intent to steal, and the larceny therein of “one screw-driver of the value of twenty-five cents, and fifteen bottles of champagne of the value of more than one hundred dollars,” the property of said McCallum. The defendant was also indicted and convicted under G. L. c. 266, § 49, for knowingly having in his possession burglarious implements and intending to use them as such. One exception was saved to the admission of evidence. The others relate to certain instructions given.
1. The owner of the champagne alleged to have been stolen was permitted to testify, subject to the defendant’s exception, that its value was between $150 and $180. This exception must be overruled. As the defendant was charged with breaking and entering a dwelling house in the night time with intent to steal, the amount of the property stolen or its value was immaterial. Commonwealth v. Williams, 2 Cush. 582,588.
2. In the course of his charge the presiding judge explained to the jury the difference between direct or positive evidence and circumstantial evidence. Circumstantial evidence “is constantly applied in courts of justice, and has been commended by most eminent judges.” Commonwealth v. Richmond, 207 Mass. 240, 246. It is plain from the entire charge that the judge submitted the cases to the jury upon all the evidence, both direct and circumstantial, and that no prejudicial error is shown.
3. The judge instructed the jury in substance that if the personal property of one person is found in the possession of another and the latter offers no explanation as to his possession thereof, there is a presumption that he stole it, but
4. The following question was put to the jury by the judge in the course of his charge: “Does he [the defendant] truthfully explain where he got these liquors?” There was evidence offered by the Commonwealth that when the defendant was arrested he told the officers that he had beer in his car; that when they started to make an examination he said, “I’ll take it back. It’s champagne. I got the stuff in Greenfield . . . that “He said he had bought it in' Greenfield from a fellow by the name of Martin.” The question was proper for the consideration of the jury upon the issue whether the defendant had offered a reasonable and satisfactory explanation of the presence of the property in his possession. No error in the charge appears in the submission of this question to the jury.
5. The reference in the charge to the duties and obligations resting upon the defendant’s counsel and upon the district attorney respectively was not prejudicial to the defendant. It is to be assumed the jury fully understood that the defendant was represented at the trial by his counsel, and that the district attorney represented the Commonwealth solely in his official capacity.
Exceptions overruled.
