Petition — Godin v. Massachusetts

4“ Supreme Court, U.S

FILED |

MAR 28 1978

Gee

In the

Supreme Court of the United

MICHAEL RODAK, JR., CLERK

Ocroser Term, 1977.

N 277% -13 79

EDMUND J. GODIN,

PETITIONER,

vo.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for a Writ of Certiorari to the Supreme

Judicial Court for the Commonwealth of

Massachusetts.

Morris M. Go.pIncs,

KENNETH H. TATARIAN,

Manoney, Hawkes & GoLpINcs,

500 Boylston Street,

Boston, Massachusetts 02116.

(617) 261-2300

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

—- ~

Table of Contents.

Opinion below

Jurisdiction

Questions presented

Constitutional provision involved

Statement of the case

Reasons for granting the writ

I. The application to petitioner of the common

law duty of an employer to his employees

alleged in the indictments, first enunciated

by the trial judge in his instructions to the

jury and first approved by the Supreme Judi-

cial Court upon petitioner’s appeal from his

convictions for manslaughter, violated the

Due Process Clause of the Fourteenth Amend-

ment to the United States Constitution in that

it constituted a retroactive and unforeseeable

application of the criminal law

II. Petitioner was convicted on no evidence

that he stored an excessive or illegal quantity

of fireworks, as alleged in the Commonwealth

bill of particulars, in violation of his rights

under the Due Process Clause of the Four-

teenth Amendment to the United States Con-

stitution

Conclusion

Appendix A: Portions of the Superior Court record

showing the proper and timely raising of federal

questions

Appendix B: Opinion of the Supreme Judicial Court

Appendix C: Judgment of Supreme Judicial Court

owwnss wb bd

13

16

la

9a

22a

ii TABLE OF AUTHORITIES CITED.

Table of Authorities Cited.

CASEs.

Bouie v. City of Columbia, 378 U.S. 347 (1964) 6, 12

Burr v. Massachusetts Elec. Co., 356 Mass. 144

(1969) 8,9

Commonwealth v. Atencio, 345 Mass. 627 (1963) 11, 12

Commonwealth v. Godin, __.._ Mass. ____, 371]

N.E. 2d 438 (1977), Mass. Adv. Sh. (1977) 2790 2, 5, 6,

7, 8, 9, 10 et seq.

Commonwealth v. Ries, 337 Mass. 565 (1958) 13

Commonwealth v. Welansky, 316 Mass. 383 (1944) 7, 9,

10, 11

Douglas v. Buder, 412 U.S. 430 (1973) 6, 12, 13, 16

I. Baron & Sons, Inc. v. Eastern Storage Industrial

Park Corp., 355 Mass. 245 (1969) 14, 15

Lakube v. Cohen, 304 Mass. 156 (1939) ll

Poirier v. Town of Plymouth, __ Mass. ___

(1978), Mass. Adv. Sh. (1978) 100 8, 9, 12

Shannon v. Willard, 201 Mass. 377 (1909) 8

Sparks v. Kepnes, 339 Mass. 349 (1959) 9

Thompson v. Louisville, 362 U.S. 199 (1960) 13, 16

Thompson v. National Fireworks Co., 195 Mass. 327

(1907) 15

Williams v. United Men’s Shop, Inc., 317 Mass. 319

(1944) 8, 9

TABLE OF AUTHORITIES CITED. iii

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution, Fourteenth Amendment,

Due Process Clause

28 U.S.C. § 1257(3)

2, 3, 4, 5, 6, 12, 13 et seq.

2

In the

Supreme Court of the United States.

Octroser TERM, 1977.

No.

EDMUND J. GODIN,

PETITIONER,

v.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for a Writ of Certiorari to the Supreme

Judicial Court for the Commonwealth of

Massachusetts.

The petitioner, Edmund J. Godin, prays that a writ of

certiorari issue to review the judgment of the Supreme Ju-

dicial Court of the Commonwealth of Massachusetts entered

December 29, 1977.

2

Opinion Below.

The opinion of the Supreme Judicial Court of the Com-

monwealth of Massachusetts is reported as Commonwealth

v. Godin, ___. Mass. ___., 371 N.E. 2d 438 (1977) (Mass.

Adv. Sh. [1977] 2790), and is reprinted as Appendix B to

this petition at pp. 9a-2la.

Jurisdiction.

The judgment of the Supreme Judicial Court of the Com-

monwealth of Massachusetts was entered on December 29,

1977, and is reprinted as Appendix C to this petition at p.

22a. The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(3).

Questions Presented.

1. Whether the application in petitioner’s criminal trial

of the common law duty of an employer to his employees

alleged in the indictments, first enunciated by the trial

judge in his instructions to the jury and first approved by

the Supreme Judicial Court upon petitioner’s appeal from

his conviction for manslaughter, violated the Due Process

Clause of the Fourteenth Amendment to the United States

Constitution in that it constituted a retroactive and unfore-

seeable application of the criminal law?

2. Whether petitioner was convicted on no evidence

that he had stored an excessive or illegal quantity of fire-

works, as alleged in the Commonwealth’s bill of particulars,

3

in violation of his rights under the Due Process Clause of

the Fourteenth Amendment?

Constitutional Provision Involved.

Constitution of the United States, Amendment XIV:

[N Jor shall any State deprive any person of life, liberty,

or property, without due process of law .. ..

Statement of the Case.

Petitioner seeks a writ of certiorari to review the judg-

ment of the Massachusetts Supreme Judicial Court, entered

December 29, 1977, affirming his conviction on three indict-

ments for manslaughter. Petitioner was convicted on July.

2, 1975, after a jury trial in the Superior Court, and the

Supreme Judicial Court granted direct appellate review.

The case arises out of an explosion on March 30, 1972, on

the premises of Pyro Products, Inc., a Massachusetts cor-

poration engaged in the manufacturing of fireworks. The

indictments charged petitioner, as president of the corpora-

tion, with wantonly and recklessly breaching his legal duty

to the employees of the corporation to use reasonable care

to keep the premises safe for their use in their employment

(R. 2-4).' In response to petitioner’s motion for a bill of

‘References to (R. ) and (S.R. ) are to the printed Summary of

the Record and Supplementary Record of the proceedings in the trial

court.

4

particulars, the Commonwealth specified that the petitioner

breached his duty by “[t]he storage of fireworks in excessive

and illegal amounts” (S.R. 3, 8, 13).

Petitioner moved to dismiss the indictments on the grounds

that they did not specify a crime under then existing law, in

that there was no such legal duty established by the law of

Massachusetts, and that they failed to comply with the

specificity requirements of the Due Process Clause of the

Fourteenth Amendment (R. 5, 6). This motion was denied

and petitioner’s exception preserved (App. A, infra, pp. la-

2a).

At trial, the petitioner and the Commonwealth stipulated

that petitioner was the President of Pyro Products, Inc., on

March 30, 1972; that the three decedents died as a result of

the explosion on that date; and that Pyro Products, Inc.,

was duly licensed under both local and state laws and had

all the necessary bonding and permits required by law to

operate a fireworks manufacturing company.

Evidence was introduced to show that unfinished fire-

works had accumulated in one building of the manufac-

turing plant due to a strike, that although the building had

always been used for storage, the additional quantity made

the work of the employees more difficult, and that petitioner

had been warned of the danger possibly resulting from this

condition.

The trial judge expressly found that there was no evi-

dence that this storage violated any applicable ordinance or

regulation (Tr. 237),* and there was no evidence that the

quantity was excessive by any custom in the business or like

practice in the industry from which the jury could find a

standard of care.

* References to (Tr. _) are to pages of the transcript of the proceedings

at trial.

5

At the close of the Commonwealth’s case and at the close

of all the evidence, petitioner moved for directed verdicts

of not guilty on the ground that no evidence had been intro-

duced of any standard by which his storage of fireworks

was excessive or illegal. Exceptions to the denials of his

motions were preserved (R. 6-7) (App. A, infra, pp. 2a-3a).

The judge instructed the jury that petitioner could be

found guilty of manslaughter if he had not acted in such a

way as to keep the risks to his employees at a reasonable

minimum, consistent with the operation of a business of this

type (Tr. 299). The petitioner objected to these instructions

on the ground that they imposed a more stringent standard

of care on an employer than had previously been imposed

under Massachusetts law, thus retroactively imposing lia-

bility on conduct which was not criminal when engaged in.

Petitioner excepted both to the failure to give requested

instructions and to the instructions as given, claiming that

they violated his due process rights under the Fourteenth

Amendment to the United States Constitution (R. 19-21).

After the guilty verdict, petitioner’s motion for a new trial

was denied (R. 11) (App. A, infra, pp. 3a-4a). He filed a

timely claim for appeal, and applied to the Supreme Ju-

dicial Court for direct appellate review. This application

was granted. Both in his application, in his brief, and in

oral argument, petitioner pressed his claim that the failure

to dismiss the indictments and the trial judge’s instructions

as given violated his due process rights under the Fourteenth

Amendment on the grounds that the duty of care stated in

the indictments and in the judge’s charge had been unfore-

seeably and retroactively applied. Commonwealth v.

Godin, supra, at 2794-2795, 2802 (App. B, infra, pp. 12a-

13a, 19a). Petitioner also preserved and pressed on appeal

his claim that there was no evidence from which the jury

6

could have found that his storage of fireworks was excessive

or illegal (R. 18-19). Id. at 2799 (id., pp. 16a-17a).

The Supreme Judicial Court rejected the petitioner’s con-

tentions on both of these due process claims. Common-

wealth v. Godin, supra.

Reasons for Granting the Writ.

I. THe APPLICATION TO PETITIONER OF THE COMMON LAW

Duty OF AN EMPLOYER TO HIS EMPLOYEES ALLEGED IN THE

INDICTMENTS, First ENUNCIATED BY THE TRIAL JUDGE IN

HIS INSTRUCTIONS TO THE JURY AND First APPROVED BY THE

SUPREME JUDICIAL CouRT UPON PETITIONER'S APPEAL FROM

HIS CONVICTIONS FOR MANSLAUGHTER, VIOLATED THE DUE

Process CLAUSE OF THE FOURTEENTH AMENDMENT TO THE

Unrrep States CONSTITUTION IN THAT IT CONSTITUTED A

RETROACTIVE AND UNFORESEEABLE APPLICATION OF THE

CRIMINAL Law.

Petitioner contends that the Supreme Judicial Court of

Massachusetts and the trial court acted in disregard of his

rights under the Due Process Clause of the Fourteenth

Amendment to the United States Constitution and in conflict

with the principle announced by this court in Bouie v. City

of Columbia, 378 U.S. 347 (1964), and Douglas v. Buder,

412 U.S. 430 (1973), by establishing and applying in this

criminal case a duty of care owed by employers to employees

which has never before been stated or held to be the appli-

cable duty.

In Massachusetts the elements of the crime of manslaugh-

ter are derived from the common law. Commonwealth v.

Godin, supra, at 2796 (infra, p. 14a). One of those ele-

7

ments is the legal duty of care which the defendant owed to

the decedent. Commonwealth v. Welansky, 316 Mass.

383, 399 (1944); Commonwealth v. Godin, supra, at 2795-

2798 (infra, pp. 13a-16a). The duty owed is a material ele-

ment of the offense because the jury must determine whether

a defendant’s conduct deviated so far from the duty owed

as to constitute wanton and reckless conduct. “The essence

of wanton or reckless conduct is intentional conduct, by

way either of commission or of omission where there is a

duty to act ....” Commonwealth v. Welansky, supra, at

399. (Emphasis supplied.)

The indictments charged that Pyro Products, Inc., “was

under a legal duty to its employees to use reasonable care to

keep its premises safe for their use in their employment”

and that the petitioner, being “authorized by the corpora-

tion to maintain, control, operate, construct, alter, supervise

and manage its premises,” accepted the responsibility for

such acts and “was therefore under a duty to its employees

to use such reasonable care,” but in reckless disregard of

such duty and in reckless disregard of the possible harmful

consequences to such employees of his failure to perform said

duty, he “did wilfully, wantonly and recklessly neglect and

fail to fulfil his duty” (R. 2-4).

The denial of petitioner’s motion to dismiss the indict-

ments was upheld by the Supreme Judicial Court on the

ground that the indictments correctly charged the duty of

care owed, Commonwealth v. Godin, supra, at 2794-2798

(infra, pp. 12a-16a), and that it had never been stated in

Massachusetts that a lesser duty was owed. Id. at 2798

(infra, p. 16a).

The trial judge instructed the jury in accordance with the

duty alleged in the indictments. The Supreme Judicial

*The Supreme Judicial Court held that a variation between the duty

alleged and the duty charged was not prejudicial when the charge was

8

Court held that, since the duty alleged in the indictments

correctly stated applicable law, the instructions were cor-

rect. Id. at 2802 (infra, p. 19a).

Petitioner claims that under a fair reading of prior Massa-

chusetts case law, he could not have anticipated that an

employer could be found criminally liable for failure to

exercise reasonable care. Indeed, twelve days after its de-

cision in petitioner's case, the Supreme Judicial Court stated

the duty of care of employers to employees in the following

language:

The tort duty of care owed by an employer to his

employee . . . is stated in terms of an exception — only

where there is a hidden defect or danger does a duty

of care exist at all. The general rule is that the em-

ployer owes no duty to alter the condition of his prem-

ises to make them safe for the employee. Poirer v.

Town of Plymouth, __. Mass. ___ (1978) (Mass.

Adv. Sh. [1978] 100, 116-117), citing Burr v. Massa-

chusetts Elec. Co., 356 Mass. 144, 147 (1969), and

Williams v. United Men’s Shop, Inc., 317 Mass. 319,

320 (1944).*

Prior Massachusetts cases uniformly hold that an employer

had no duty to employees to use reasonable care to keep its

premises safe for their use in their employment. In Shan-

non v. Willard, 201 Mass. 377, 380 (1909), the court held

read as a whole. Commonwealth v Godin, supra, at 2803 (infra, p.

20a).

‘The court then abandoned this previously applicable duty of care in

favor of imposing a duty to exercise reasonable care, on the ground that

the public policy of the Commonwealth now justifies such a change.

Id. at 127.

9

that under the common law an employer is under no duty

to his employees to change the obvious conditions of a

building in which the employee accepts employment. See

also, Burr v. Massachusetts Elec. Co., 356 Mass. 144, 147

(1969), where the court stated that an employer owes no

duty to alter the conditions where the work is to be done or

to make them safe for the employee. Accord, Sparks v.

Kepnes, 339 Mass. 349, 351-352 (1959); Williams v. United

Men’s Shop, Inc., 317 Mass. 319, 320 (1977).

In presenting his claims to the Supreme Judicial Court,

the petitioner relied upon these prior statements of the duty

of care, the accuracy of which is affirmed by the decision in

Poirier v. Town of Plymouth, supra. Although the Su-

preme Judicial Court distinguished between the civil and

criminal duties of care in both Commonwealth v. Godin,

supra, at 2797-2798 (infra, pp. 15a-16a), and Poirier v.

Town of Plymouth, supra, at 116, by referring to the “tort”

duty of care, those two cases constitute the first two in-

stances in which a Massachusetts court has ever character-

ized the duty of care of an employer to its employees as

being a “tort” duty or a “criminal” duty.

The unforeseeability of the duty imposed on petitioner is

further demonstrated by Commonwealth v. Welansky,

supra, the only manslaughter case in the decisions of courts

of Massachusetts referring to the duty of care of an em-

ployer to his employees. In that case, the Supreme Judicial

Court contrasted an employer’s common law duty of care to

his employees with a businessman’s duty of care to his in-

vitees. The court sustained indictments which charged that

a businessman owed a duty to exercise reasonable care for

the safety of his invitees. It directly contrasted the duty of

care which an employer owes to his employees in the fol-

lo ving language:

10

Compare the case of an employer who at common

law owes no duty to his employees to make his factory

safer than it appeared to be when the employment

began, because they contractually assumed the risk.

[Citations omitted.] 316 Mass. at 397 n. 2.

This decision supports petitioner's argument in several

respects. First, in defining a businessman’s duty of care to

his invitees, the Supreme Judicial Court relied upon and

incorporated the legal duty of care as it had been stated in

civil cases. See 316 Mass. at 397. This gives rise to an ex-

pectation that the legal duty of care does not vary between

civil and criminal cases. Second, the court contrasted an

employer's duty of care to his employees with a business-

man’s duty of reasonable care to his invitees, indicating that

the employer owes a lesser duty. This statement, made in a

criminal case, also implies that the criminal duty of care is

determined by reference to the civil s'andard. If a Massa-

chusetts employer in 1944 did owe a duty to use reasonable

care for the safety of his employees, it is unfathomable why

the court would contrast the tort duty of care rather than

compare the criminal duty of care. Third, while the Su-

preme Judicial Court stated in petitioner's case that the

Welansky footnote must be viewed as obiter dictum with

no force of precedent, id. at 2797-2798 (infra, p. 15a), it

must be recognized that that is the only statement of an

employer’s duty of care which has ever been made by the

Supreme Judicial Court in the context of a criminal case.

Thus, Welansky, supra, gave petitioner and other employers

every reason to believe that the duty established in the civil

law would apply in the criminal context as well.

No rebuttal of petitioner’s argument appears in the opin-

ion of the Supreme Judicial Court. The court cited no

11

criminal case as authority for its holding that an employer

does owe a duty of reasonable care for the safety of his em-

ployees. Nor did the court cite any civil or criminal case

which distinguished between the duty of care applicable in

civil and criminal cases in the context of the employer/

employee relationship.*

Perhaps to compensate for this lack of precedent, the

court below stated that because the doctrine of assumption

of the risk is not applicable in criminal cases, the Welansky

footnote is obiter dictum. Commonwealth v. Godin, supra,

at 2797 (infra, at 15a). However, assumption of the risk,

whether voluntary or contractual, has never been stated to

be a part of the legal duty of care. Doctrines such as as-

sumption of the risk are affirmative defenses and have con-

sistently been recognized as such in civil and criminal cases.

They do not alter the legal duty which is owed. They

merely establish the basis for a defendant’s avoidance of

liability where he has breached the duty — the avoidance

being allowed by law because the injured party has assumed

the risk.

Although the rule that an employer hes no duty to his

employees to change the obvious conditions of their employ-

ment is sometimes called a contractual assumption of the

risk, that description confuses two separate concepts and is

probably inaccurate. See Lakube v. Cohen, 304 Mass. 156

(1939). The level of duty owed by an employer to his em-

ployees is established for reasons of public policy and cannot

normally be altered by the parties. The case of Common-

wealth v. Atencio, 345 Mass. 627 (1963), cited in the prin-

* The court acknowledged in the principal decision the recent reformu-

lation of duties of care applicable in other contexts not involving an em-

ployer. Commonwealth v. Godin, supra, at 2797 n. 2 (infra, p. 15a

n. 2). All these cases have been decided since 1972.

12

cipal decision for the correct proposition that doctrines such

as contractual assumption of risk have no place in the crimi-

nal law, firmly establishes the difference between the duty

of care, which is a part of the Commonwealth’s case, and

assumption of the risk, an affirmative defense in civil cases.

Thus, in Poirier, supra, when the Supreme Judicial Court

raised the employer's duty of care, it did not do so by

means of abolishing the defense of assumption of the risk.

In Commonwealth v. Atencio, supra, what the court dis-

allowed was the defendant’s offer of an affirmative defense

that the decedent had assumed the risk; it did so not be-

cause a higher duty was involved, but because that defense

has no place in the criminal law. Petitioner did not suggest

or attempt to prove that the decedents assumed any risk.

He simply asserted and continues to assert that the duty of

care established in prior cases was a lesser one than that

which was stated and applied to his conduct.

Petitioner does not challenge the power of the Supreme

Judicial Court to reinterpret common law doctrines, whether

they be the duty owed by an employer to an employee or

the common law elements of the crime of manslaughter.

In a criminal case, however, the Due Process Clause and

the principles of Bouie v. City of Columbia, supra, and

Douglas v. Buder, supra, require that the court limit its re-

definition of the law to prospective application. The im-

position upon the petitioner of a duty of care heretofore un-

known under the criminal laws of the Commonwealth of

Massachusetts constituted the retroactive and unforeseeable

application of that law in violation of his rights under the

Due Process Clause of the Fourteenth Amendment.

13

II. PeErrrioNER was CONVICTED ON No EVIDENCE THAT HE

STORED AN EXCESSIVE OR ILLEGAL QUANTITY OF FIREWORKS,

AS ALLEGED IN THE COMMONWEALTH’S BILL oF Parricu-

LARS, IN VIOLATION OF HIS RIGHTS UNDER THE DvE PROCEsS

CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION.

The petitioner contends that the Commonwealth intro-

duced no evidence from which the jury could find that he

stored an excessive or illegal quantity of fireworks as was

alleged in the indictments as limited by the bill of particu-

lars. Therefore, his conviction was in violation of his rights

under the Due Process Clause of the Fourteenth Amendment

to the United States Constitution. See Douglas v. Buder,

supra, at 431-432; Thompson v. Louisville, 362 U.S. 199

(1960).

In response to petitioner’s motion for a bill of particulars

(S.R. 1-2, 7, 12), the Commonwealth specified the acts of

the petitioner which were in reckless disregard of his alleged

duty to each decedent as “[t]he storage of fireworks in ex-

cessive and illegal amounts” (S.R. 3, 8, 13). Particulars

which are filed by the Commonwealth limit the scope of an

indictment and require the Commonwealth to prove a de-

fendant’s guilt on the charge in the indictment in the man-

ner set forth in the particulars. See Commonwealth v.

Ries, 337 Mass. 565, 580-581 (1958).

At the conclusion of the Commonwealth’s case, the pe-

titioner moved for a directed verdict of not guilty upon

each indictment and asserted in the trial court and in the

Supreme Judicial Court that there was no evidence from

which the jury could find beyond a reasonable doubt that

the petitioner stored an excessive or an illegal quantity of

fireworks. The trial judge expressly found that there was

no evidence that the petitioner had violated any ordinance

14

or applicable regulation relating to the quantity of fireworks

which could be stored (Tr. 237). At the close of all of the

evidence, he so instructed the jury. Accordingly, there was

no evidence that the quantity of fireworks stored was an

“illegal” quantity.

There was no evidence that the quantity of fireworks

stored was excessive because no evidence was introduced of

a standard against which to measure the quantity of fire-

works actually stored. The petitioner contended through-

out the state court proceedings that evidence of such a

standard could be proved in the form of statutory require-

ments, rules or regulations or by evidence of a custom or

practice in the industry which was tied to safety standards

or considerations. That there was no such evidence was

found by the trial judge in ruling on the petitioner’s motion

at the close of the Commonwealth’s case (Tr. 237) and

acknowledged by the Supreme Judicial Court in its decision

on petitioner’s appeal. See Commonwealth v. Godin,

supra, at 2800-2801 (infra, pp. 17a-18a). Accordingly, the

jury was permitted to speculate whether the quantity of fire-

works stores was excessive.

It is established Massachusetts law that whether the stor-

age of a quantity of flammable products is “excessive” must

be determined by reference to an applicable standard and

cannot be judged by the personal knowledge of the trier of

fact. In I. Baron & Sons, Inc. v. Eastern Storage Industrial

Park Corp., 355 Mass. 245 (1969), a fire of unknown origin

occurred on the premises of a public warehouseman and

spread to nearby premises. The plaintiff sued for damages

alleging negligence due to the defendant’s storage of “an ex-

cessive quantity of flammables.” Id. at 251. The Supreme

Judicial Court held that verdicts for the defendant were

properly directed because there was no evidence that appli-

cable rules and regulations of fire prevention authorities

15

(which established storage standards) had been violated and

the trier of fact could not supply such a standard of his own

knowledge. Jd. at 251-253. In the case at bar, as in I.

Baron & Sons, Inc., supra, the petitioner was found not to

be required to comply with fire safety regulations because

the corporation had commenced operation prior to the ef-

fective date of such regulations. Compare Commonwealth

v. Godin, supra, at 2791 (infra, pp. 9a-10a), with I. Baron

& Sons, Inc., supra, at 247-253.

In this case, the Supreme Judicial Court stated that “the

knowledge of facts which would cause a reasonable man to

know that a danger of serious harm exists . . . has its roots

in experience, logic, and common sense, as well as in formal

legal standards.” Id. at 2801 (infra, p. 18a). The fact that

no “formal legal standards” provided the measure of “ex-

cessive storage” here was found by the trial judge and

acknowledged by the Supreme Judicial Court. The fact

that “experience, logic, and common sense” cannot provide

the knowledge of facts necessary to establish the standard is

clear from the case of I. Baron & Sons, Inc., supra. Ac-

cordingly, there was no evidence of a standard against

which the jury could measure the petitioner’s actions to

determine that he stored “an excessive or illegal quantity of

fireworks.”

The Supreme Judicial Court’s recitation of the findings

which the jury properly could make does not supplant the

need for proof of excessive storage, particularly since the

explosive nature of fireworks renders an accident peculiarly

likely even with the exercise of the highest degree of care on

the part of the petitioner. See Thompson v. National Fire-

works Co., 195 Mass. 327, 329 (1907).

The absence of a standard from which the jury could

conclude that the petitioner stored an excessive or illegal

quantity of fireworks permitted his conviction based upon

16

no evidence. Such a conviction violates the Due Process

Clause of the Fourteenth Amendment to the United States

Constitution. Douglas v. Buder, supra, at 431-432; Thomp-

son v. Louisville, supra, at 206.

Conclusion.

For the foregoing reasons, the petition for a writ of certi-

orari to the Supreme Judicial Court for the Commonwealth

of Massachusetts should be granted.

Respectfully submitted,

MORRIS M. GOLDINGS,

KENNETH H. TATARIAN,

MAHONEY, HAWKES &

GOLDINGS,

500 Boylston Street,

Boston, Massachusetts 02116.

(617) 261-2300

Attorneys for Petitioner.

la

Appendix A.

PORTIONS OF THE RECORD SHOWING THE PROPER AND TIMELY

RAISING OF FEDERAL QUESTIONS.

COMMONWEALTH OF MASSACHUSETTS.

Superior Court.

COMMONWEALTH

vo.

EDWARD J. GODIN

Nos. 54614, 54615, 54616.

Motion to Dismiss and for Other Appropriate Relief.

The Defendant moves that the Court dismiss the Indict-

ment in this case or grant other appropriate relief for each

of the following reasons:

1. The Indictment fails to describe any crime or offense

fully and plainly, substantially and formally, as required by

Article XII of the Declaration of Rights of the Constitution

of the Commonwealth.

Wherefore, the Defendant requests that the Indictment

be dismissed.

2. The Indictment fails to describe the crime which the

Defendant is alleged to have committed with sufficient

specificity so as to satisfy the requirements of the Four-

teenth Amendment to the United States Constitution pro-

hibiting the deprivation by any state of any person of

liberty or property without due process of law.

Wherefore, the Defendant requests that the Indictment

be dismissed. |

2a

3. The Indictment charges that Pyro Products, Inc. and

the Defendant were under certain legal duties to the

employees of Pyro Products, Inc. and that the Defendant

acted in reckless disregard of those alleged duties. As a

matter of law of the Commonwealth, however, Pyro Pro-

ducts, Inc. was not under legal duty to its employees as

set forth in the Indictment and consequently the Defend-

ant was under no such duty and his actions cannot be

found, as a matter of law, to have been in reckless disregard

of any such duty.

Wherefore, the Defendant requests that the Indictment

be dismissed.

Filed October 20, 1972, and denied (Ford, J.) Febru-

ary 13, 1973. Defendant’s exception noted.

Nos. 54614, 54615, 54616.

Defendant’s Motion for a Directed Verdict of Not Guilty

upon the Close of the Evidence of the Commonwealth.

The Defendant moves that the Court direct a verdict of

not guilty upon the close of the evidence of the Common-

wealth.

By his Attorney,

MORRIS M. GOLDINGS.

Filed July 1, 1975, and denied (Brogna, J.) July 2, 1975.

Defendant’s exception noted.

3a

Motion renewed at close of defendant’s evidence and

denied (Brogna, J.) July 2, 1975. Defendant's exception

noted.

Nos. 54614, 54615, 54616.

Motion for New Trial.

Now comes the Defendant Edmund J. Godin and moves

for new trial on each of the above-numbered indictments

and urges as grounds therefor the following:

1. The instructions to the jury in each of the above-

numbered indictments violated the rights of the Defendant

under the Fifth and Fourteenth Amendments to the United

States Constitution and Article XII of the Declaration of

Rights of the Constitution of the Commonwealth of Massa-

chusetts in that the instructions deprived the Defendant of

liberty and property without due process of law.

2. The instructions to the jury in each of the above-

numbered indictments constituted legislation by the judicial

department in violation of Article XXX of the Declaration

of Rights of the Constitution of the Commonwealth of

Massachusetts.

3. The instructions to the jury in each of the above-

numbered indictments constituted an ex post facto law in

violation of Article I Section 10 and the Fourteenth Amend-

ment to the United States Constitution and Article XII of

the Declaration of Rights of the Constitution of the

Commonwealth of Massachusetts.

4. The verdict was against the weight of the evidence.

Filed July 15, 1975, and denied (Brogna, J.) July 31,

1975.

4a

Nos. 54614, 54615, 54616.

Defendant’s Exception to the Court’s Denial of Defendant's

Motion for a New Trial.

Now comes the Defendant, Edmund J. Godin, and takes

exception to the denial of his Motion for a New Trial in

each of the above-numbered indictments.

Filed August 4, 1975.

Nos. 54614, 54615, 54616.

Defendant’s Assignment of Errors Pursuant to G.L. c. 278

§§ 33A-33H, Inclusive.

The Defendant respectfully assigns as errors with respect

to each of the above-numbered Indictments the following:

1. The Superior Court justice erred in denying the

Defendant’s Motions To Dismiss and for Other Appropriate

Relief on the grounds that: (1) the Indictments fail to

describe any crime or offense fully and plainly, substantially

and formally, as required by Article XII of the Declaration

of Rights of the Constitution of the Commonwealth; (2) the

Indictments fail to describe the crime which the Defendant

is alleged to have committed with sufficient specificity so as

to satisfy the requirements of the Due Process Clause of the

Fourteenth Amendment to the United States Constitution;

(3) under the law of the Commonwealth, neither Pyro

Products, Inc. nor the Defendant were under the legal

duties to the employees of Pyro Products, Inc. which were

charged in the Indictments and, therefore, as a matter of

oe

oe

5a

law, the Defendant could not be found to have been in

reckless disregard of any such duty.

Summary of Record Page 6

Defendant’s Motions To Dismiss and for Other Appro-

priate Relief

20. The Superior Court justice erred in denying the

Defendant’s Motions for Directed Verdicts of Nut Guilty

Upon the Close of Evidence of the Commonwealth on the

grounds that: (1) there was no evidence that the

Defendant breached his duty of care to the employees as

alleged in the Indictments by storing an excessive or illegal

quantity of fireworks; (2) the Commonwealth had intro-

duced no evidence that the Defendant had stored an illegal

or excessive quantity of fireworks as was charged in the

Indictments, as limited by the particulars in the Common-

wealth’s Bill of Particulars.

Tr. 237, Exceptions 20, 21, 22.

Defendant’s Motions for Directed Verdict of Not Guilty

Upon Close of the Evidence of the Commonwealth.

22. The Superior Court justice erred in denying the

Defendant’s Motions For Directed Verdicts of Not Guilty

Upon All the Evidence on the same grounds stated in

Assignment of Error No. 20.

Tr. 281, Exception 24

Defendant’s Motions For Directed Verdict of Not

Guilty Upon the Close of the Evidence Of the

Commonwealth.

23. The Superior Court justice erred in instructing the

jury that the employees were entitled to have the risks kept

to a reasonable minimum, consistent with the operation of a’

business of the type in which the Defendant was engaged,

on the grounds that: (1) such instruction deprived the

Defendant of due process of law secured to him by the

Fourteenth Amendment of the United States Constitution

and Article XII of the Declaration of Rights of the Consti-

tution of the Commonwealth in that there was no evidence

of the risks which would be consistent with the operation of

the business of the type in which the Defendant was

engaged and such instruction did not set forth the standard

of care by which the Defendant’s conduct was to be

measured as enunciated by the Courts of the Common-

wealth in prior decisions: (2) such instruction did not

restrict the jury to finding the Defendant guilty or not

guilty of the crimes charged in the Indictments, as particu-

larized in the Commonwealth’s Bill of Particulars: (3) such

instruction constituted legislation by the Judicial Depart-

ment in violation of Article XXX of the Declaration of

Rights of the Constitution of the Commonwealth: (4) such

instruction violated Article I § 10 and the Fourteenth

Amendment to the United States Constitution and Article

XII of the Declaration of Rights of the Constitution of the

Commonwealth.

Tr. 308, Exception unnumbered

7a

26. The Superior Court justice erred in failing to in-

struct the jury in accordance with the Defendant’s Request

for Instructions to the Jury paragraphs 2, 3, 4, 5, 6, 7, 8, 9,

10, 11, 12, 15, 16, 17, and 20 on the grounds that: (1) the

failure to so instruct the jury deprived the Defendant of due

process of law secured to him by the Fourteenth Amend-

ment of the United States Constitution and Article XII of

the Declaration of Rights of the Constitution of the

Commonwealth; (2) the failure to so instruct the jury

permitted the jury to find the Defendant guilty of crimes

other than those charged in the Indictments, as particu-

larized in the Commonwealth’s Bill of Particulars; (3) the

failure to so instruct the jury amounted to a declaration of

new law by the Judicial Department in violation of Article

XXX of the Declaration of Rights of the Constitution of the

Commonwealth; (4) the failure to so instruct the jury

permitted the retroactive application of new law in viola-

tion of Article I § 10 and the Fourteenth Amendment to the

United States Constitution and Article XII of the Declara-

tion of Rights of the Constitution of the Commonwealth.

Tr. 309-310, Exception unnumbered.

Defendant’s Request For Instructions To Jury

27. The Superior Court justice erred in denying Defend-

ant’s Motion for a New Trial on the grounds that: (1) the

Court’s instructions to the jury deprived the Defendant of

liberty and property without due process of law in violation

of the Fourteenth Amendment to the United States Consti-

tution and Article XII of the Declaration of Rights of the

Constitution of the Commonwealth; (2) the Court’s instruc-

tions to the jury constituted legislation by the Judicial

8a

Department in violation of Article XXX of the Declaration

of Rights of the Constitution of the Commonwealth; (3) the

Court’s instructions to the jury violated Article I § 10 and

the Fourteenth Amendment to the United States Constitu-

tion and Article XII of the Declaration of Rights of the

Constitution of the Commonwealth; (4) the verdict was

against the weight of the evidence.

Defendant’s Motion for a New Trial

Defendant’s Exception to the Court’s Denial of Defend-

ant’s Motion for a New Trial.

9a

Appendix B.

SUPREME JUDICIAL COURT.

COMMONWEALTH vs. EDMUND J. GODIN.

Liacos, J. On March 30, 1972, an explosion occurred in

Bridgewater, Massachusetts, at a manufacturing plant

housing Pyro Products, Inc., a corporation engaged in the

manufacture of fireworks. As a result of that explosion,

three employees of the corporation were mortally wounded.

The grand jury handed down three indictments which

charged that the defendant committed manslaughter by

causing the deaths of the three employees. After jury

verdicts against the defendant he was sentenced to con-

current terms of imprisonment in the Massachusetts

Correctional Institution at Concord. A notice of appeal

was filed with the Appeals Court and we granted the

defendant’s application for direct appellate review. We

find no error.

The assignments of error which have been argued

concern (1) the adequacy of the indictments charging the

defendant; (2) the admission of certain evidence; (3) the

judge’s failure to direct verdicts in the defendant’s favor;

and (4) the propriety of the judge’s instructions to the jury.

We state the facts in the light most favorable to the

Commonwealth. Commonwealth v. Sandler, 369 Mass.

, (1975) [Mass. Adv. Sh. (1975) 2993, 3010].

The defendant was president of Pyro Products, Inc. The

corporation was duly licensed under both the State and

local laws and had all bonds and permits required by law

to operate a fireworks manufacturing company. The judge

below ruled the corporation did not have to comply with

the fire safety regulations issued pursuant to G. L. c. 148,

10a

§ 13, as amended through St. 1945, c. 710, §§ 5-8, as it had

begun operation prior to the effective date of the statute

and was, therefore, exempt from complying with its provi-

sions.

The plant itself was a complex of some twenty-one

separate buildings. Buildings two and three were the loca-

tions of the initial stages of manufacture. Building seven

was the building where the insertion of fuses and other

matter necessary for the fireworks to lift off was accom-

plished, as well as where a process known as drying took

place. Building eight was for shipping, and buildings nine

through eighteen were evidently storage buildings. The

process of manufacture began in building two with the

rolling of the tubes for the fireworks, and the processing of

black powder. The “flash,” which gives the fireworks their

multi-colored luminescence was manufactured in building

five and loaded into the tubes at building two.

Of particular import is the process which took place in

building number seven, the building in which all three

decedents were working at the time of the explosion. That

building was used primarily for drying the completed fire-

works. At the time of the accident two other functions

took place therein; the finishing off of the fireworks by

putting the final required wrappings around the tubes and

the insertion of so-called lifting charges. Lifting charges

were the power source which enabled the fireworks to reach

their desired altitude for detonation. A secondary use of

building seven at the time of the explosion was to store a

great number of uncompleted fireworks. These uncom-

pleted fireworks had accumulated because of a strike which

forestalled completion of partially manufactured fireworks.

The strike lasted from September, 1971, until the beginning

of 1972.

gs He ge ee -

A ae a Oe ee

lla

There was evidence from which the jury could conclude

that prior to the end of the strike no more than 1,000 to

1,500 fireworks were stored in building seven, but after the

end of the strike and up to and including the time of the

explosion, approximately 4,000 to 5,000 shells were stored

there. There was evidence from which the jury could con-

clude that the storage of large numbers of unfinished shells

in the building severely limited and hampered the ability of

those persons involved in the manufacturing process to

move about and do their job without undue difficulty.

Several employees worked in building seven in proximity to

completed and uncompleted shells in boxes in an area de-

scribed as “congested” by the presence of such boxes. There

was evidence to indicate the defendant had been warned by

employees on separate occasions about the danger possibly

resulting from the excess accumulation.

About 9:35 a.m., on March 30, 1972, an explosion rocked

the compound. Of the employees working there at the

time several were injured. Three were killed. The jury

could have concluded that the explosion originated in

building seven and caused other explosions and damage at

nearby buildings. The dismembered bodies of the dece ‘ents

were found outdoors near building seven. Photographs of

the scene after the explosion, which were before the jury as

part of the Commonwealth’s case, depict a scene of almost

total devastation.

As part of the case and over the exception of the defend-

ant as to his qualifications, an expert witness testified for

the Commonwealth that there was a hazard involved in

storing the amount and weight (16,000 pounds) of fireworks

stored in the building at the time of the explosion. The

hazard consisted of both the increased likelihood of an acci-

dent occurring and the greater extent of probable damage

which would occur in the event of an accident. While the

l2a

expert witness was unable to state an opinion as to the

source of ignition, in response to a hypothetical question he

did state that friction could cause the shells to ignite. He

testified that the amount of damage resulting from an ex-

plosion of 16,000 pounds of fireworks would be far more

extensive than would the damage resulting from an explosion

of a substantially lesser amount; namely, that such an ex-

plosion probably would completely level the building in

which the fireworks were stored. Also, the expert testified

that such an explosion would cause secondary damage to

any adjacent buildings, and, should there be combustible

materials in those other buildings, those materials would be

susceptible to ignition by the blast.

This was the sum of the evidence viewed most favorably

to the Commonwealth. We consider the defendant’s claims

of error.

1. Sufficiency of the Indictments.

The defendant challenges the sufficiency of the indict-

ments on two grounds. First, he argues that their material

allegations fail to set forth a crime under the law of Massa-

chusetts as it was on the day of the explosion. Second, he

argues that the indictments do not “plainly and fully, sub-

stantially and formally” describe the crime as required by

both art. 12 of the Declaration of Rights of the Massachu-

setts Constitution and the Fourteenth Amendment to the

Constitution of the United States.

a. The indictments alleged to contain these fatal flaws

state in each instance in material part that Pyro Products,

Inc., “was under a legal duty to its employees to use reason-

able care to keep its premises safe for their use in their em-

ployment”; that the defendant “was . . . authorized by the

corporation to maintain, control, operate, construct, alter,

supervise and manage its premises”; that he “accepted the

13a

responsibility for such acts,” and “was therefore under a

duty to its employees to use such reasonable care,” but “in

reckless disregard of such duty” to each decedent employee

and in “reckless disregard of the probable harmful conse-

quences” to such employee “of his failure to perform said

duty,” he “did wilfully, wantonly and recklessly neglect and

fail to fulfil” his duty to each of the three decedents and as

a result “did assault and beat said [decedent] and by such

assault and beating did kill said [decedent].”

The defendant’s primary argument in respect to the

alleged insufficiency of the indictments is that no decision of

this court up to the time of the explosion set forth, in respect

to criminal law, the rule that an employer owed his em-

ployees a duty of reasonable care in the operation and main-

tainance of the place of employment. Consequently, it is

claimed the indictments do not set forth the crime of man-

slaughter.

Both parties to this appeal recognize the landmark case

respecting the determination of this and other related issues

to be Commonwealth v. Welansky, 316 Mass. 383 (1944).

That case involved the tragic fire at the Cocoanut Grove

nightclub in Boston in 1942. The defendant, the president

and dominant figure of the corporation which owned the

club, was indicted for the crime of manslaughter, based on

material allegations closely resembling those in the case at

bar. The defendant concedes this similarity but points to

one difference that he alleges is crucial. Whereas the in-

dictments in this case alleged that the defendant owed a

duty of reasonable care to an employee, the indictments in

Welansky alleged the existence of that duty in respect to

invitees. Moreover, the defendant points to a footnote in

Welansky at 397 set forth in the margin,' which suggests no

'“Compare the case of an employer who at common law owes no

duty to his employees .o make his factory safer than it appeared to be

l4a

such duty is owed to employees. The defendant argues that

the standard set forth in the Welansky footnote states the

law applicable in 1972. He claims that since the standard

differs from that set forth in the indictments, the difference

is fatal to their legal sufficiency.

There is no statutory definition of manslaughter. The

elements of the crime are derived from the common law.

Commonwealth v. Webster, 5 Cush. 295, 303 (1850). The

common law development in the area has resulted in the

definition of two distinct forms of manslaughter. So-called

voluntary manslaughter, see Commonwealth v. Soaris, 275

Mass. 291, 299 (1921), is a form of manslaughter clearly not

implicated in the instant case and it need not be discussed.

Involuntary manslaughter is “an unlawful homicide unin-

tentionally caused by an act which constitutes such a disre-

gard of probable harmful consequences to another as to

amount to wanton or reckless conduct.” Commonwealth v.

Vanderpool, 367 Mass. 743, 747 (1975) [Mass. Adv. Sh.

(1975) 1543, 1548]. See Commonwealth v. Campbell, 352

Mass. 387, 397 (1967). The Commonwealth has an interest

that persons within its territory should not be killed by the

wanton and reckless conduct of others. Commonwealth v.

Atencio, 345 Mass. 627, 629 (1963). The interests sought to

be protected are readily distinguishable from the interests

protected by the imposition of legal duties and the standards

when the employment began, because they contractually assumed the

risk. Jones v. Granite Mills, 126 Mass. 84 [1878]. Keith v. Granite

Mills 126 Mass. 90 [1878]. Pauley v. Steam Gauge & Lantern Co. 131

N. Y. 90 [1892]. Huda v. American Glucose Co. 154 N. Y. 474 [1897].

In those cases recovery by a servant against his master for injury caused

by fire in a factory was denied. See also Wainwright v. Jackson, 291

Mass. 100 [1935]; Little v. Lynn & Marblehead Real Estate Co. 301

Mass. 156 [1938]. In Cloutier v. Oakland Park Amusement Co. 129

Maine 454 [1930], the court failed to distinguish between such cases and

the case of an invited business visitor.”

A A Re A Oe

15a

for determining their breach which have shaped the law of

civil liability.* The fact that a particular allegation of facts

may be nonactionable in tort does not perforce mean the

same holds true when those same facts are contained in the

material allegations of an indictment for manslaughter.

It is on this point that the defendant’s argument has its

downfall. The dictum in Welansky which the defendant

seeks to give the force of law was based on notions of con-

tract and assumption of the risk aimed at determining who

shall bear the risk of loss in a particular circumstance. W.

Prosser, Torts § 68 (4th ed. 1971). Doctrines such as con-

tractual assumption of risk have no place in the criminal

law. See Commonwealth v. Atencio, supra. It follows,

therefore, that the language in Welansky relied on by the

defendant must be viewed as obiter dictum with no force of

precedent.

An employer whose acts or omissions constitute a disre-

gard for the probable harmful consequences and loss of life

as to amount to wanton or reckless conduct is properly

charged with manslaughter where a foreseeable death is

caused thereby. The Welansky case settled any claim that

“negligence” and “wanton” and “reckless” conduct were

words expressing differences of degree of risk. The differ-

ences involved are differences in kind. The interests in-

volved are distinct. The State is the offended party where

*The development of tort law in this Commonwealth is exemplified

by a number of recent decisions. See Mounsey v. Ellard, 363 Mass. 693

(1973) (rejecting different standards of care as between licensees and

invitees); Lindsey v. Massios, Mass. (1977) (Mass. Adv. Sh. [1977]

381) (tenant’s visitors in common passageways); King v. G & M Realty

Corp., Mass. (1977) (Mass. Adv. Sh. [1977] 2372) (tenants in

common passageways). See also Bouchard v. DeGagne, 368 Mass. 45

(1975) (Mass. Adv. Sh. [1975] 1856) (Mounsey doctrine to be applied

retroactively). Under the view we take (as did the trial judge) these

decisions are not relevant to the issues involved here because of the dif-

ferent interests involved in the criminal law.

16a

a death is caused by recklessness. To accept the defendant’s

arguments here is not only to overlook the fundamentally

different purposes of criminal law and tort law but to create

a class of persons — employees — as to whom a license to

kill by wanton and reckless conduct is given. No such right

has ever existed, nor do we accept such a view now. The

indictments were legally sufficient.

b. Much of what we he e said in regard to the legal

sufficiency of the indictments is relevant to the defendant’s

claim that the indictments did not contain the specificity re-

quired by art. 12 of the Massachusetts Declaration of Rights

and the Fourteenth Amendment to the United States Con-

stitution.

The defendant concedes that the indictments in this case

track, with the exception previously noted, the indictments

in Welansky. A claim of lack of specificity similar to this

one was also made in that case and was rejected. The

reasons set forth for the rejection of the defendant’s claim in

Welansky, i.e., that the indictment stated the elements re-

quired by the statutes relative to such indictment, G. L.

c. 277, § 79, and were fully supported by particulars, G. L.

c. 277, § 40, as well as the absence of any claim of preju-

dice, are equally applicabie here. Commonwealth v. Wel-

ansky, supra, at 393-396. Cf. Commonwealth v. Baker,

367 Mass. 58 (1975) [Mass. Adv. Sh. (1975) 1875]. It there-

fore follows that the defendant’s claim is without merit.

2. Failure to Grant Directed Verdicts.

The defendant moved for directed verdicts of not guilty

at the close of the Commonwealth’s case and again at the

close of all the evidence. His motions were denied. The

defendant argues that the trial judge was in error in failing

to grant his motions on three grounds: (1) that there was no

evidence that he caused to be stored an excessive quantity of

17a

fireworks; (2) that, as matter of law, he did not engage in

wanton and reckless conduct; and (3) that there was no evi-

dence, assuming adequate proof of excessive storage, that

the excessive storage was the cause of the deaths.°

The first two grounds asserted rely in large part on the

absence of any evidence that the quantity of fireworks stored

violated any applicable statute, rule, regulation or custom

and usage. To a large extent the defendant’s argument

misapprehends the nature of the standard which would

establish the criminal liability of the defendant.

“The essence of wanton or reckless conduct is intentional

conduct, by way either of commission or of omission where

there is a duty to act, which conduct involves a high degree

of likelihood that substantial harm will result to another.

... [Citations omitted.] Wanton or reckless conduct

amounts to what has been variously described as indifference

to or disregard of probable consequences.” Commonwealth

v. Welansky, supra at 399. See also Banks v. Braman, 188

Mass. 367 (1905).

The Commonwealth’s theory of the case, as set forth in

its bill of particulars and at trial was that the “storage of

fireworks in excessive and illegal amounts” constituted the

defendant’s “wanton and reckless conduct.” The essence of

the particular, fairly read, is that by allowing the level of

fireworks to accumulate to the extent it did, the defendant

* The defendant also asserts that the judge applied an erroneous stand-

ard of review. However, if there was, as we conclude, sufficient evi-

dence to go to the jury, then any such alleged error was harmless. We

consider on this issue only the evidence introduced up to the time the

Commonwealth rested its case and the defendant filed his motions for

directed verdicts. Commonwealth v. Kelley, Mass. , - (1976)

(Mass. Adv. Sh. [1976] 1023, 1026-1027). The view we take of the evi-

dence is that most favorable to the Commonwealth. Commonwealth v.

Klein, Mass. (1977) (Mass. Adv. Sh. [1977] 1393).

18a

created a risk of potential harm of such a degree and magni-

tude as to constitute wanton and reckless conduct.

That there was no evidence that the accumulation in the

amounts alleged violated a particular statute, rule or regula-

tion is of no more consequence than it was in Welansky.

At best the violation of such standards would be evidence of

negligence, Richmond v. Warren Inst. for Savings, 307

Mass. 483 (1940), a standard different in kind from wanton

and reckless conduct. Commonwealth v. Edelin, Mass.

(1976) [Mass. Adv. Sh. (1976) 2795]. The standard

necessary for a conviction is at once both a subjective and

objective standard, and is based in part on the knowledge

of facts which would cause a reasonable man to know that

a danger of serious harm exists. Such knowledge has its

roots in experience, logic, and common sense, as well as in

formal legal standards.

In this case there was evidence from which the jury could

conclude that (1) prior to the explosion the amount of fire-

works stored in building seven had reached unprecedented

levels; (2) the defendant had been warned of the dangers

posed by such accumulations; (3) nothing was done to

remedy the situation; and (4) increments in such storage in-

creased the risk of explosion and resulting harm in a propor-

tion commensurate with the extent of increase in storage.

Such evidence, if believed, would warrant the jury in

concluding that the defendant should have been aware and

indeed was aware of the increased risk of harm and thus his

failure to remedy the situation was the kind of conduct

which constitutes wanton and reckless conduct. It certainly

could not be said that such conduct was not reckless as

matter of law. Recklessness involves conscious creation of a

substantial and unjustifiable risk. See Model Penal Code

§ 2.02 (c) (Proposed Official Draft 1962); Comments, § 2.02

at 123-125 (Tent. Draft No. 4, 1955). As long as there is

19a

proof that the defendant’s conduct was reckless as far as the

risk of explosion was concerned, he must then be held ac-

countable for the probable consequences of such conduct.

It therefore follows that the motions for the directed ver-

dicts were properly denied.

3. The Charge.

The defendant assigned as error both the judge’s giving of

certain instructions and his failure to grant certain of the

defendant’s requests for instructions. The substantive basis

on which the assignments are premised is twofold: (1) that

the charge did not adequately define wanton and reckless

conduct and (2) that it did not reflect the state of the com-

mon law as of the time of the crime. The second line of

argument has been previously discussed and we need not

repeat our discussion here.

The charge to the jury is to be viewed in light of the over-

all impact it has on the jury. Commonwealth v. Pinnick,

354 Mass. 13, 15 (1968). A judge need not instruct the jury

in exact accord with the defendant’s request. Common-

wealth v. Lussier, 333 Mass. 83, 93 (1955). The defendant

is only entitled to have the issues of fact clearly presented

and the law applicable thereto properly explained. Com-

monwealth v. Kelly, 359 Mass. 77, 93 (1971).

The specific objections viewed in light of this standard

can be easily set forth: (a) The defendant claims that the

instructions were inadequate in failing to distinguish reckless

and wanton conduct from negligence and gross negligence.

Welansky requires that such a distinction be made. See

Banks v. Braman, supra. However, our reading of the

charge shows that the judge was careful to emphasize that

the conduct for which liability might be imposed in this

case must be wilful conduct, as distinguished from negli-

gence. There was no error.

20a

(b) The defendant also argues that the charge of reckless

and wanton conduct did not set forth an adequate standard

by which the jury could judge the defendant’s conduct.

Much of the language complained of is taken directly from

instructions which were approved by this court in Welansky.

The defendant has, however, pointed to portions of the

charge which viewed in isolation arguably may be read to

set a lesser standard. Viewed in the context of the entire

charge wherein the judge emphasized the fact that the de-

fendant had to be charged with knowingly accepting a high

degree of risk of substantial harm we do not believe that

such language was prejudicial to the defendant. Common-

wealth v. Kelly, supra.

4. Evidentiary Points.

The defendant has argued that the judge committed

reversible error by three rulings on the admission of evi-

dence. We-consider his arguments briefly.

(a) The defendant argues that the testimony of the

Commonwealth’s expert should have been excluded as he

received some of his training from his father, who had

worked at Pyro Products, Inc. The expert, himself, had

never worked for the corporation. Such matters go to the

credibility of the witness and are for the jury and not the

judge to determine. Muzi v. Commonwealth, 335 Mass.

101 (1956).

(b) The defendant challenges the admission of testimony

as to the condition of the bodies of the decedents soon after

the explosion. Our reading of the transcript does not allow

us to say that the judge abused his discretion in admitting

such evidence. Compare Commonwealth v. Lamoureux,

348 Mass. 390, 393 (1965), with Commonwealth v. Rich-

mond, Mass. (1976) [Mass. Adv. Sh. (1976) 2873].

2la

(c) The defendant also argues that it was error to admit

testimony as to manufacturing procedures used at Pyro Pro-

ducts, Inc., at times other than the commencement of the

work of each of the decedents or at the time of the explo-

sion. So much of the objection as hinges on the defendant’s

understanding of the applicable law is, of course, without

merit. The evidence was relevant so that the jury could

judge the extent of the risk accepted by the defendant in

allowing the extent of accumulation which took place.

The witness was also subject to vigorous cross-examination

thereby affording the defendant the opportunity to alleviate

any possible prejudice. There was no error.

5. From what we have said it follows that justice does

not require the granting of a new trial.

Judgments affirmed.

22a

Appendix C.

COMMONWEALTH OF MASSACHUSETTS.

SUPREME JUDICIAL CouRT FOR THE COMMONWEALTH,

At Boston, DeceMBER 29, 1977.

IN THE CASE No. SJC-734

COMMONWEALTH

vs.

EDMUND J. GODIN

pending in the Superior Court for the County of Plymouth

Nos. 54614, 54615, 54616

OrpereD, that the following entry be made in the docket;

viz., —

Judgments affirmed.

By THE Court,

WILLIAM M. CLORAN,

Assistant Clerk.

December 28, 1977