Evidence, Competency, Relevancy and materiality, Of value, Presumptions and burden of proof. Practice, Criminal, Charge to jury.
At the trial of an indictment charging the defendant with breaking and entering a dwelling house in the night time with intent to steal and the larceny of a screw driver of the value of twenty-five cents and fifteen bottles of champagne of the value of more than $100, evidence of the amount or value of property stolen is immaterial; and an exception to the admission of testimony by the owner as to such value must be overruled. Instructions by the judge, in his charge to the jury at the trial of an indictment, on the subject of circumstantial evidence, in the course of which he stated, "And by the wise men that sit in our Supreme Court it has been said by very eminent judges that circumstantial evidence was the strongest evidence that could be produced as to a man's conduct," were held not to have constituted prejudicial error, where the record disclosed that the judge submitted the case to the jury on all the evidence, both direct and circumstantial. Instructions by the judge in his charge to the jury at the trial of the indictment above described, in substance that, if personal property of one person is found in the possession of another and the latter offers no explanation as to his possession of it, there is a presumption that he stole it, but that the presumption is one of fact and not of law, were held to have been correct. At the trial of the indictment above described, there was evidence offered by the Commonwealth that when the defendant was arrested he told the officers that he had beer in his automobile; 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" of a name different from the name of the person who, according to evidence offered by the Commonwealth, was the owner. Tools, found by the jury to have been burglarious, one of them fitting marks on a window and door that had been forced in a dwelling whence the property had been taken, were found under the rear seat of the automobile. The defendant did not testify. The judge, subject to exception by the defendant, asked the jury in his charge, "Does he [the defendant] truthfully explain where he got these liquors?" Held, that no error in the charge appeared in the submission of such question to the jury. In his charge at the trial above described, the judge stated: "Now the evidence in this case is as fresh in your mind as mine and it has been revamped, summed up by the counsel on one side and the other, . . . [the defendant's counsel] . . . speaking for the defendant, and the district attorney speaking for all of us, speaking for the community, speaking for peace and quiet." The defendant excepted to such portion of the charge. Held, that such reference was not prejudicial to the defendant.
CROSBY, J.
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 that the presumption is one of fact and not of law. This instruction was correct. It is settled that the possession of stolen property by one soon after the theft, if no explanation or an unsatisfactory account of it is given, is presumptive evidence of guilt. Commonwealth v. McGorty, 114 Mass. 299. Commonwealth v. Deegan, 138 Mass. 182. Commonwealth v. Williams, 161 Mass. 442. Commonwealth v. Taylor, 210 Mass. 443, 444.
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.