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10/17/77 COMMONWEALTH v. CARL J. SWAHN

October 17, 1977

COMMONWEALTH
v.
CARL J. SWAHN



Worcester. Indictment found and returned in the Superior Court on May 5, 1976. The case was heard by Smith, J.

Hale, C.j., Grant, & Armstrong, JJ.

SYLLABUS BY THE COURT

Breaking and Entering. Pleading, Criminal, Indictment. Assault. Words, "Building."

The opinion of the court was delivered by: Grant

An indictment under G. L. c. 266, § 14, charging the defendant with breaking and entering a dwelling house in the nighttime with intent to commit a felony and making an actual assault on a person lawfully therein when read together with a specification that "a gun was pointed at the victim who was lawfully" in the dwelling house, was sufficient to charge a putting in fear within the meaning of c. 266, § 17. [645]

At the trial of a defendant under G. L. c. 266, § 17, the Judge did not err in instructing the jury that a dwelling house was a "building" within the meaning of § 17. [645-648]

The remaining indictment in this case is laid under the first sentence of G. L. c. 266, § 14, *fn1 and alleges that on February 15, 1976, the defendant, at West Brookfield, "did break and enter in the nighttime the dwelling house of Frank Kretchmer and Bertha Kretchmer with intent to commit a felony, to wit: robbery, Charles Kozlowski being lawfully therein, and after having so broken and entered, did make an actual assault on the said Charles Kozlowski." In response to an order of the court that it specify the manner and means by which the defendant had committed the offence alleged, the Commonwealth answered (among other things not here material) that "a gun was pointed at the victim who was lawfully" in the Kretchmer dwelling house.

At trial the Commonwealth offered evidence from which the jury could have found that at approximately 6:15 P.M. on February 15, 1976, the defendant and one DiCenzo, both armed with loaded and fireable revolvers and both possessed of stocking masks, approached the Kretchmer dwelling house with the intention of stealing money they supposed would be found therein. Following a break by DiCenzo, both individuals crawled into the house, where they blundered into a stakeout being conducted by State police officers with the permission of the Kretchmers, who had temporarily vacated the house at the suggestion of the police. As he was being arrested, DiCenzo pointed his revolver at one of the officers (Kozlowski), who was thereby put in fear.

At the close of the Commonwealth's case the defendant, who was tried alone, moved for a directed verdict, urging (among other things) that the evidence was insufficient to warrant a finding that any offence had been committed during the nighttime within the meaning of G. L. c. 278, § 10. *fn2 The Judge ruled that the evidence was insufficient to warrant a finding that any offence had been so committed but also ruled, subject to the defendant's exception, *fn3 that he would submit the case to the jury on what he (the Judge) regarded as the lesser included offence of breaking and entering in the daytime which is set out in G. L. c. 266, § 17. *fn4 See, generally, Commonwealth v. Sitko, 372 Mass. 305, 307-308 (1977), and cases cited. The Judge did so following the Conclusion of the defendant's case, and the defendant also excepted to the Judge's instruction to the jury that "a dwelling is a building within the meaning of" § 17.

The defendant was convicted and sentenced to serve a term of from five to seven years at the Massachusetts Correctional Institution at Walpole. He has appealed, urging error in two respects.

1. The defendant conceded at trial that he could be held responsible for the acts of DiCenzo on the theory that both had participated in a joint venture, but he argued below and continues to argue here that he cannot be convicted of a lesser included offence unless that offence is charged in the indictment. Specifically, the argument is that an "assault," such as is alleged in the indictment, can consist of either an attempted battery or putting the victim in fear (Commonwealth v. Richards, 363 Mass. 299, 303 [1973]), that the indictment does not specify the particular way in which the assault was committed, and, therefore, that he has not been effectively charged with putting Kozlowski "in fear," which is a prerequisite of a valid conviction under G. L. c. 266, § 17. The argument overlooks the Commonwealth's specification that the assault was committed by pointing a gun at Kozlowski, which not only can but must be read together with the indictment in order to determine the nature and character of the offence actually charged. Commonwealth v. Ries, 337 Mass. 565, 581 (1958). Commonwealth v. Iannello, 344 Mass. 723, 726 (1962). One normally anticipated result of pointing a gun at someone is that he is put in fear of bodily harm, and we are of the opinion that the reasonable import of the specification in this case is that the assault was committed by using the gun to put Kozlowski in fear rather than as the instrument of an attempted battery on him of the type considered in Commonwealth v. Slaney, 345 Mass. 135, 136-141 (1962).

We hold that the indictment, when read in the light of the specification, was sufficient to charge a putting in fear within the meaning of G. L. c. 266, § 17.

2. The defendant's other point is that the indictment alleges that he broke and entered a "dwelling house" within the meaning of G. L. c. 266, § 14, and that such a dwelling house cannot be equated with a "building" as that word is used in G. L. c. 266, § 17. The argument does not go much further than a bald assertion that "no case in this Commonwealth has ever held that a dwelling house is a building as that term is used in" § 17. We concur in the quoted assertion but reject the basic contention.

The breaking and entering statutes contain no definition of a "dwelling house" such as is found in the arson statutes. See the second sentence of the present G. L. c. 266, § 1. If one were to ponder the statutory history of G. L. c. 266, §§ 14 and 17, *fn5 he could construct a technically plausible argument to the effect that our successive legislative bodies intended a "dwelling house" (G. L. c. 266, § 14) to mean something separate and distinct from a "building" (G. L. c. 266, § 17). But any such argument would have to yield to ...


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