19 Mass. App. Ct. 1031 | Mass. App. Ct. | 1985
The defendants were convicted of breaking and entering in the nighttime with intent to commit, as well as the commission of, larceny and of possession of burglarious implements. The sentences (slightly shorter on the latter indictments than on the former) were concurrent.
There was evidence that prowlers were spotted behind the house of a Mrs. O’Connell in a quiet residential neighborhood around 10:30 p.m.; that when the police arrived they found the handbag of a Mrs. Fontaine behind Mrs. O’Connell’s house; that Mrs. Fontaine lived two houses away; that her purse was missing twenty-four dollars and a small flashlight; that around 11:00 p.m. the defendants were found hiding in bushes outside another nearby house in possession of the flashlight and twenty-four dollars (placed separately from other money in a side pants pocket); that they gave various and implausible explanations for their presence there; and that a screwdriver, not belonging to the homeowner, was found in the bushes where they had hidden. A miscellany of error is alleged, of which one has merit.
1. On the indictments for possession of burglarious implements, the jury were charged in a manner that permitted guilty verdicts based on the defendants’ possession of either the gloves or the screwdriver. The jury may well have based the guilty verdicts on the gloves, which were found on the defendants’ persons. (The screwdriver was found in the bushes where the defendants had hidden.) In Commonwealth v. Jones, 355 Mass. 170, 176-177 (1969), it was stated that gloves, even if worn to facilitate a burglary (as, e.g., by concealing fingerprints), would not be burglarious implements. The contrary was assumed to be hue in Commonwealth v. Dellinger, 10 Mass. App. Ct. 549, 560-561 (1980), reversed on other grounds, 383 Mass. 780 (1981), but without discussion of the question. We must follow the Jones case, and we think this requires reversal of the convictions on the burglarious implements indictments despite the absence of an objection to the charge. Compare Commonwealth v. Dunphy, 377 Mass. 453, 458-459 (1979).
2. The other points argued are without merit, (a) The inadequacies in the judge’s charge relied on in this court (e.g. failure to define “larceny” other than as “stealing,” his instruction that the nighttime element was undisputed) were not raised at trial, and it is easily inferable that the reason they were not raised was that additional instructions in these areas would have availed the defendants naught. The jury were not likely to conclude that the individuals who removed the twenty-four dollars from Mrs. Fontaine’s purse lacked an intention permanently to deprive her thereof; nor were they apt to conclude that the break occurred in the daytime, when the evidence put it between 10:00 p.m. and 10:30 p.m. See Commonwealth v. Kingsbury, 378 Mass. 751, 752-755 (1979). Counsel were not “manifestly unreasonable” in declining to ask for instructions that could be thought
3. The judgments entered on the indictments for possession of burglarious implements are reversed, and the verdicts thereon are set aside. The judgments on the indictments for breaking and entering in the nighttime with intent to commit larceny, and for larceny, are affirmed.
So ordered.