319 Mass. 635 | Mass. | 1946
The defendant was convicted on an indictment charging him with breaking and 'entering the café 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 Café 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
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 Café 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, § 12, as appearing in St. 1935, c. 468, § 1; § 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 café 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.
Exceptions sustained.