Commonwealth v. Smith, 151 Mass. 491

Commonwealth v. Smith

151 Mass. 491 | Mass. | 1890

Deyens, J.

The first count of the indictment upon which the defendant George T. Smith was convicted alleged that he with others, on November 9, 1888, with force and arms, at Woburn, in said county of Middlesex, “ a certain building, to wit, a house of one John R. Carter, there situate, feloniously, wilfully, and maliciously did set fire to and burn, against the peace of said Commonwealth,” etc. The defendants requested a ruling that this averment set out, under § 1 of the Pub. Sts. c. 203, the crime of arson. This was refused by the presiding judge, who ruled that said averment charged the offence of burning a building under § 4 of that chapter. To the refusal of his request, and to the ruling as given, the defendants excepted.

While in an indictment at common law for arson there was no occasion to describe the building upon which it was committed as a “ dwelling-house,” and the term “ house ” would suffice, yet when the crime of arson was made a statutory offence in this Commonwealth, which could be committed only on a dwelling-house, it became necessary thus to allege and prove it. Commonwealth v. Barney, 10 Cush. 478. While the Pub. Sts. c. 203, § 1, provide for the offence of burning a dwelling-house, § 4 provides for those of burning “a banking-house, warehouse, store, manufactory, mill, barn, stable, shop, office, outhouse, or other building whatsoever of another, other than is mentioned in section ■ two.” These statutory offences under § 1 and § 4 are so far distinct, that under an indictment charging the burning of a dwelling-house, where it appeared that the building burned had never been occupied as a dwelling, it was held that there could be no conviction of burning a building other than a dwelling-house, and that the statutory offence of burning a dwelling-hou¡?e did not include, within itself, the offence of burning a building which was not a dwelling-house. The description of what was burned was essential to fix the identity of the offence. Commonwealth v. Hayden, 150 Mass. 332. The statutory crime of arson could therefore be charged only by alleging the building burned to have been a dwelling-house. It would not, however, follow that, under the general words added to the buildings enumerated in § 4, “or other buildings whatsoever,” an indictment might not be sustained which charged the burning of a building described as “ a house,” *495.even if it were proved at the trial to have been “ a <|welling-house ” which was burned. In such case, everything necessary to constitute .the statutory offence charged would have been alleged. It is no defence to an indictment, that the facts in proof show that the defendant committed an offence of a higher degree than that charged. Commonwealth v. M'Pike, 3 Cush. 181. Commonwealth v. Walker, 108 Mass. 309.

The evidence of Carter as to the character of the building burned was admissible, even if it also showed the house to be a dwelling-house, or adapted to be used as such.

The defendant George T. Smith further contends that the admission of the book containing the written portion of the policy of insurance issued to Arthur B. Kendall, supplemented by the oral testimony of the agent of the insurance company, that, with the printed part known as the standard policy of this Commonwealth with certain exceptions mentioned, the same constituted a true copy of the policy, was erroneous. A demand had been made upon the defendant George T. Smith for the policy, and it had not been found among the effects of Arthur B. Kendall, who was a fugitive from justice, and there was evidence that George T. Smith had procured it in Philadelphia for Arthur B. Kendall on property alleged to be in the building burned, and that it was delivered to said Smith. The contention of this defendant is, that, if secondary evidence was admissible, the office copy of the policy, which it was shown was in the home office of the insurance company in Philadelphia, should have been first produced. To this there are two sufficient answers. Our process does not run into Pennsylvania, so that the government had no means whatever of compelling its production. Again, if it could have been obtained, there are no degrees in secondary evidence, so that a party authorized to resort to it is compelled to produce one class of such evidence rather than another. Smith v. Brown, ante, 338.

The evidence of the conversation of Arthur B. Kendall after the fire, although not in the presence of the Smiths, was admissible. There was evidence tending to show a conspiracy between the Kendalls and the Smiths to burn the house, for the purpose of obtaining insurance upon property claimed to be therein. The conversation related to the couTse to be pursued *496by Arthur B. Kendall in consequence of certain evidence developed at the fire inquest, and in this he expressed a wish to remove the goods from the house of Griffin, where they had been previously stored by Charles R. Kendall and the defendant George T. Smith, and was informed by Charles R. Kendall of Mrs. Morrill’s place. In connection with this, testimony was offered by the government that certain trunks and a case were afterwards removed by Arthur B. Kendall and George T. Smith to the house of Mrs. Morrill, and that they were there examined by Smith; and that afterwards the remains of burnt paper were found. ' The evidence is so briefly reported that the precise bearing of these facts does not clearly appear, but they evidently might be of importance in ascertaining the guilt or otherwise of the defendant George T. Smith. That, where there is evidence of a conspiracy, the acts and declarations of each conspirator in pursuance of its objects and in furtherance of the common design are admissible against all, is well settled. Commonwealth v. Waterman, 122 Mass. 43. The evidence of Arthur B. Kendall’s conversation could not be given in evidence without necessarily including that of his brother, and was connected with acts done immediately thereafter by himself and the defendant George T. Smith in reference to the disposition of the trunks, etc. Even if those declarations or conversations were subsequent to the burning, they were still made during the pendency of the criminal enterprise. They were not recitals of past occuri’ences, but were connected with acts done evidently to shield the conspirators from the consequences of their crime.

If there could be any doubt, however, as to any injury done to the defendant George T. Smith by the admission of the acts and declarations of Arthur B. Kendall after the fire, it would be removed by the very limited view in which they were received by the court, and by the finding of the jury upon the fourth count. Arthur B. Kendall was charged as principal in that count of the indictment, and in the same count Smith was charged as accessory. It was only for the purpose of proving that Arthur B. Kendall was the principal, as charged in that count, that evidence of his acts' and declarations subsequent to the fire was admitted, and the jury were instructed to consider them only for that purpose. Whether this was not more favorable to the defendant *497George T. Smith than he had a right to ask, it is not necessary-now to inquire. There is no reason to suppose that more weight was attributed to these acts and declarations than the instruction of the court permitted. Even if the instruction was less favorable than George T. Smith might have asked, as upon the fourth count he was acquitted, he has no ground of complaint.

Exceptions overruled.