Commonwealth v. Dreyer

Brown, J.

(concurring in part and dissenting in part). The defendant’s motion for a required finding of not guilty of possession of burglarious implements should have been allowed. The indictment here charged the defendant with possession of a “machine, tool, or implement adapted and designed for cutting through, forcing or breaking open a building, room, vault, safe or other depository, in order to steal therefrom money or other property, or to commit any other crime, . . . with intent to use or employ or allow the same to be used or employed for such purpose” (emphasis supplied). Compare Commonwealth v. Armenia, 4 Mass. App. Ct. 33, 38-39 (1976). I am unable to subscribe to the majority’s view that in the instant circumstances the Commonwealth is not required to produce any “evidence that the automobile was used to store valuables or [the defendant’s] purpose was to enter the automobile to remove valuables” in order to secure a conviction for violation of G. L. c. 266, § 49, as appearing in St. 1966, c. 269, § 1.

The defendant has argued that the passenger compartment of an automobile may not be considered a depository for pur *568 poses of G. L. c. 266, § 49. That point, concededly, was decided to the contrary in Commonwealth v. Aleo, post 916, 917 (1984). Cofttrast Commonwealth v. Schultz, 17 Mass. App. Ct. 958 (1983) (boat yard). I am of opinion, however, that the passenger compartment may be found to be a depository only in those instances where there is evidence that the passenger compartment was in fact used for the storage of valuables or that the defendant planned to steal valuables from the automobile. Compare Commonwealth v. Mahnke, 13 Mass. App. Ct. 1057, 1059 (1982). The majority and the Commonwealth, however, believe that the jury could find the defendant had transgressed against G. L. c. 266, § 49, if they found he possessed the implements “to commit any other crime,” e.g., stealing the automobile. 1 Commonwealth v. Krasner, 358 Mass. 727, 732 (1971). Commonwealth v. Armenia, 4 Mass. App. Ct. at 38 . I disagree. Under our cases, the “other crime” must relate to the “building, room, vault, safe or other depository” described in § 49. Commonwealth v. Schultz, supra. The majority places great reliance on Commonwealth v. Krasner, supra. But here, unlike in Krasner , the break was into an automobile. An automobile is not a building, room, vault, or safe. The majority do not give proper weight to the requirement of the statute that the automobile have the character of a depository to subject the defendant to liability for possession of burglar’s tools. To warrant a finding that the automobile was a depository, there must be some evidence that the automobile was used for the storage of valuables or that the defendant’s purpose was to enter the automobile to remove valuables. In the present case, there was no evidence that the automobile was, or was thought by the defendant to be, a depository. Contrast Commonwealth v. Aleo, supra (jury could *569 rationally infer that defendant and others were engaged in a joint enterprise of stealing automobile radios). Such a low level of proof falls far short of the mark set by Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).

I also reject the majority’s reasoning and result on a policy basis. The decision creates the anomaly of largely obliterating the statutory distinction between the treatment of car thieves as felons and joy riders as misdemeanants. From this day on, regardless of the tool or device the joy rider may use to break into a locked car, he now will be subjected to treatment as a felon.

I concur in all other aspects of the majority’s opinion, particularly the admonition regarding departures from the requirements of Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979). See n.4 of the majority opinion, supra. Appellate courts, busy or otherwise, look upon needless error the way General Custer would have felt about more Indians.

It is understandable why the Commonwealth takes this position, as it presented no evidence as to the contents of the automobile or of the defendant’s intent or purpose. I am not prepared to make the great leap that “a locked passenger automobile reasonably can be inferred to be a depository, for it ordinarily contains a radio, a glove compartment or shelf with some contents” (at 564-565), and perhaps a trunk compartment. No such leap was made in Commonwealth v. Aleo, supra.