312 Mass. 553 | Mass. | 1942
The defendant has been found guilty at a trial in the Superior Court, before a judge without a jury, upon an indictment charging him with assaulting one Kaplan, while armed with a dangerous weapon, with the intent to rob said Kaplan. He excepted to the denial of his request for a finding of not guilty.
There was evidence that Kaplan left a dog track in Revere, where he had been selling “tip sheets” and betting upon the races, at about 11:30 o’clock at night. He then went to various places where alcoholic beverages were sold and food was served. He entered the last of these places at two o’clock in the morning where, accompanied by one Deskin, he stayed until the place closed at five o’clock. While there he had “a small argument” with the defendant concerning a woman. Kaplan and Deskin left this resort. Kaplan was intoxicated and Deskin was under the influence of liquor. As they were proceeding along the highway the defendant came up from behind, pushed Deskin in the back and told him to “Keep walking and keep going.” Deskin looked behind and saw the “flash” of a revolver. The defendant then said something to Kaplan and “yanked” him around. Kaplan remembered no more until after he arrived at a hospital. Deskin obeyed the command of the defendant, but after going a short distance he saw Kaplan with his back against an advertising sign and the defendant then had his right hand against Kaplan’s stomach and his left hand over Kaplan’s shoulder. Deskin went about thirty feet and stopped when he heard Kaplan shout to him. Two
It is indisputable that the defendant, armed with a loaded revolver, assaulted Kaplan. The question presented is whether there is any evidence, including all inferences that may be rightly drawn from it, to justify a belief beyond a reasonable doubt that the defendant intended to rob Kaplan. Commonwealth v. Asherowski, 196 Mass. 342. Commonwealth v. Cooper, 264 Mass. 368.
The defendant had denied at the time of his arrest that he owned the revolver, although he testified that it belonged to him. He has no just complaint if the judge refused to believe that he had a loaded revolver upon his person for the purpose of going fishing. The judge could find that the real purpose for which he was carrying this weapon was indicated by its use when the defendant ordered Deskin to continue walking. We need not decide whether the evidence tended to show that the lacerations on Kaplan’s head were caused by the revolver, because the defendant was not charged with an assault with a dangerous weapon and it was not necessary in order to convict the defendant of the offence charged to prove that he used the revolver on Kap
Kaplan testified that he had a hazy recollection about “a small argument” with the defendant while they were in the restaurant. Such a characterization of the argument would tend to show that Kaplan considered it of a trivial nature. The judge could find that that argument was not the cause of the assault. Notwithstanding the testimony of the defendant, the judge could believe the testimony of Kaplan and Desldn that neither of them provoked an assault as they were on their way from the restaurant and that the defendant was the aggressor. There was no direct evidence that the defendant knew that Kaplan had any large sum of money on his person. Both of them were in the same restaurant for two hours where Kaplan had ordered food and drink. If the defendant’s purpose was merely to assault Kaplan, then it would seem to be unneces.sary for him to strike Deskin, with whom he had no grievance and who displayed no belligerent attitude toward him, and, after flourishing a revolver, to command him to walk along. It might be thought significant that he desired to separate Deskin from Kaplan. The evidence of what occurred thereafter did not compel a finding that Kaplan and the defendant engaged in a mutual affray where blows were exchanged. It might have been found that Kaplan was too intoxicated to fight. There is nothing in the record to show that the defendant bore any marks from such an encounter. Besides, the position of the defendant’s hands upon Kaplan’s body as he had him backed up against the sign tended to show that his purpose was to search Kaplan with his right hand while he held him with his left hand. The position of his hands could. be found to be more consistent with a purpose to rob Kaplan than with a purpose to inflict punishment upon him. The fact that the defendant did not find the money which was in a pocket on the inside of Kaplan’s shirt is no defence. Commonwealth v. McDonald, 5 Cush. 365. Commonwealth v. Jacobs, 9 Allen, 274. Commonwealth v. Taylor, 132 Mass. 261. Commonwealth v. Cline, 213 Mass. 225.
Exceptions overruled.