Commonwealth v. Krasner
Commonwealth v. Krasner
Opinion of the Court
An indictment (see G. L. c. 266, § 49) charged that Krasner on January 15, 1970, at Cambridge, “did make an implement, to wit: a battering ram, adapted and designed for breaking open a room, and that such implement was used to break into the room of the President’s office of Massachusetts Institute of Technology, to commit the crime of trespass knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ or allow the same to be used or employed for such purpose.” A Superior Court judge dismissed the indictment
General Laws c. 266, § 49 (as amended by St. 1966, c. 269, § 1), provides: “Whoever makes ... or knowingly has in his possession, an engine, 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, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use ... or allow the same to be used ... for such purpose . . . shall be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than . . . [$1,000] and imprisonment in jail for not more than . . . [2J^]' years” (emphasis supplied). Trespass is made a criminal offence by G. L. c. 266, § 120 (as amended through St. 1969, c. 463, § 2).
The Commonwealth contends that the words “or to commit any other crime” include the crime of trespass. The trial judge ruled that the statute was designed “to prevent crimes of an acquisitive nature by punishing the making or possession of instruments designed and intended for use in the perpetration of such crimes.” In addition, he concluded that in view of the heavy penalty permitted under § 49, as contrasted with the relatively light penalty provided by § 120, it was unlikely that the Legislature intended to impose severe punishment under § 49 for conduct designed to assist commission of a misdemeanor, such as trespass.
1. Chapter 266, § 49, was first enacted by St. 1853, c. 194, entitled, “An Act concerning Implements of Burglary.”
2. A majority of the court are of opinion that the 1853 act was not confined to making or possession of tools of burglary by a person intending to use them to commit theft or some other crime of an acquisitive nature. Because the language of the statute ("or to commit any other crime”) is plain, it should be interpreted in accordance with the natural meaning of the words. See Johnson v. District Atty. for the No. Dist. 342 Mass. 212, 215. The words “any other crime” must be given their reasonable and normal effect or they will
There is no occasion to resort to canons of construction or to the title of the act as an aid to interpretation. The words “of burglary” in the 1853 title may be regarded as being merely descriptive of the prohibited tools and other instruments and not of their intended use. In any event the “title to . . . [a] statute . . . cannot limit its operation to a field more narrow . . . than that established by the statute itself.” See Commonwealth v. Tilley, 306 Mass. 412, 417.
The words describing the places to be entered, viz. “building, room, vault, safe, or other depository” do not indicate to us any legislative purpose to limit, to theft and other acquisitive crimes, the criminal intent proscribed by the statute. The quoted language refers not only to places where goods susceptible of theft may be found or deposited but also to places (buildings and rooms) which humans ordinarily occupy. Nothing in the 1853 statute or its history suggests that the Legislature was not as concerned about use of an implement (e.g. a battering ram) to enter an inhabited room to commit a misdemeanor (or even a more serious depredation or offence, e.g. arson, rape, or assault) as it was with situations where the prospective entrant’s intention was to steal. The statutory language was not restricted. We see no basis for the application of the principle of ejusdem generis.
One intending to break into a room merely to occupy the premises by a “sit-in” to the discomfort or exclusion of the usual occupant, or for more violent purposes (e.g. to destroy evidence, or to engage in some form of “protest”), is committing an offence within the term “any other crime,”
3. The trial judge suggested that the Legislature may have had no intent to impose the penalty stated in § 49 “for conduct designed to facilitate the commission of a petty misdemeanor such as trespass.”
5. The form of the indictment is sufficient. It conforms substantially to the form provided by G. L. c. 277, § 79, for a prosecution under § 49. It has been reasonably adapted to substitute the offence of trespass for that of theft. See also G. L. c. 277, § 35A.
6. The order dismissing the indictment is reversed. The case is to stand for further proceedings in the Superior Court.
So ordered.
Section 120, as amended in 1969, reads: “Whoever, without right, enters or remains in or upon the dwelling house, buildings ... or enclosed land . . . of another, after having been forbidden so to do by the person who has the lawful control of said premises, either directly or by notice . . . shall be punished by a fine of not more than one hundred dollars or by imprisonment for not more than thirty days, or both. A person who is found committing such trespass may be arrested by a . . . police officer and kept in custody in a convenient place, not more than twenty-four hours, Sunday excepted, until a complaint can be made against him for the offence, and he be taken upon a warrant issued upon such complaint” (emphasis supplied).
See 1853 House Journal, pp. 680, 762; 1853 Senate Journal, pp. 529, 538, 549, 551.
In the manuscript engrossed version of the statute in the State Archives, the words “or to commit any other crime” have been inserted in the margin, in lettering smaller than that of the text, but in a hand apparently the same as that in the balance of the text. Also on the engrossed copy is a reference to Vermont, Compiled Stat. (1851), p. 546, § 6. Our 1853 statute appears to have been conied almost verbatim from the Vermont statute. The words “or to commit any other crime” do not appear in the Vermont statute. Although no reference to amendment of the bill appears in the Journals, this addition, at some stage (perhaps in committee) of the legislative process, indicates a definite and conscious legislative purpose that the “intent” aspect of the offence be broader than merely acquisitive crimes. So far as pertinent, the 1853 statute read, “Every person who shall make ... or knowingly have in his possession, any engine, machine, tool or implement, adapted and designed for cutting through, forcing or.breaking open any building, room, vault, safe, or other depository, in order to steal therefrom any money or other property, or to commit any other crime, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ or allow the same to be used or employed for the purpose aforesaid; shall be punished , . ,,”
The words “or other depository” seem to us to have been inserted to broaden the word “safe” and not to limit the more general earlier words “building” and “room.” Also, in view of the plain language of the statute (“or to commit any other crime”), the principle that criminal statutes are to be strictly construed has no application. See Lustwerk v. Lytron, Inc. §44 Mass. 647, 653.
The same contention may be made with respect to the misdemeanor defined in G. L. c. 266, § 16A, originally inserted by St. 1945, c. 229, as amended by St. 1966, c. 408 (“Whoever . . . breaks and enters a building . . ' with intent to commit a misdemeanor shall be punished by a fine of not more than . . . B200H or by imprisonment for not more than six months, or both”). Although § 49 and § 16A appear in the same chapter, they were originally enacted at widely different times and cover somewhat different subject matter.
Of course, the entry alone is not the only trespass which may take place. Continued occupation by the invader, with its continuing risk of violence, would also be an intended trespass winch could be proved under this indictment. Section 49 specifies only maximum punishments, so the Legislature probably considered that all circumstances would be taken into account in sentencing persons convicted under the section, including the nature of the intended crime.
Dissenting Opinion
(dissenting) The court today remolds a statute, previously used only as a shield for the protection of the public against burglars, into a sword to be used against trespassers. In my view, neither the statutory language nor the legislative history supports this interpretation.
The majority rest their conclusion mainly on the premise that the meaning of the phrase "or to commit any other crime” as used in the statute is “plain” and therefore resort to canons of construction is unnecessary. I disagree. The doctrine of ejusdem generis has been consistently applied by this court in similar situations to interpret statutes, and I would apply it here to limit the statute’s reach, as the trial judge ruled, to crimes of an acquisitive nature.
The purpose of the doctrine is to give meaning to all the words of the statute. In order to avoid treating the specific words as surplusage, effect is given to both the specific and general words by treating the specific words as indicating a class, and the general words as extending the provisions of the statute to everything embraced in that class. Sutherland on Statutory Construction (3d ed.) § 4909, pp. 395-400. The reasoning of the majority that the words “or to commit any other crime” were added to the text “in lettering smaller than that of the text,” to vary it from its Vermont model, misses the point. If, as the majority hold, the Legislature meant to cover “any crime,” it could have effectively done so by not only adding the language it did, but also by omit
It is settled law that criminal statutes are to be strictly construed. Commonwealth v. Paccia, 338 Mass. 4, 6. United States v. Boston & Maine R.R. 380 U. S. 157, 160. Application of the ejusdem generis principle, therefore, is especially appropriate ■ here. See, for example, People v. Thomas, 25 Cal. 2d 880, 899, where the Supreme Court of California observed that, “In construing criminal statutes the ejusdem generis rule of construction is applied with stringency.” Consistent with the above interpretation also are both the use of the word “depository” and the title of the statute.
The majority reason further that the Legislature may well have intended to punish possession of instruments intended for use in committing a trespass. The short answer to this is that the crime of trespass in general did not appear on the Massachusetts statute books until almost ten years after the statute in question was passed, and it was almost thirty years later before trespass to buildings was made an offence.
The judge below rested his decision in part on the ground that the Legislature could not have intended to prevent the commission of misdemeanors by making intent to use bur-
My belief in the correctness of this conclusion is reinforced by G. L. c. 266, § 16A, which provides that one who breaks and enters a building in the nighttime or daytime with the intent to commit a misdemeanor is guilty of no more than a misdemeanor. The punishment (six months imprisonment) is to be contrasted with the ten year penalty provided by the statute in question. While I recognize that § 16A was enacted much later than § 49, it nevertheless evinces a legislative pattern that would not treat the offence here involved as a felony.
I would affirm the action of the court below in dismissing the indictment for failure to state a crime.
A statute in form similar to the present trespass statute was St. 1890, c. 410, which amended Pub. Sts. c. 203, § 99 (1882), to read: “Whoever without right enters upon or remains on or in the dwelling-house, buildings or improved or enclosed land of another, after being forbidden so to do . . . shall be punished by a fine not- exceeding twenty dollars.” Before 1882 the only trespass statute in Massachusetts concerned land under tillage and was first enacted in 1862 (St. 1862, c. 89). “Forcible entry” was indictable at common law, but the elements are not charged in the indictment before us. Commonwealth v. Shattuck, 4 Cush. 141, 145.
Statte 1969, c. 463 § 2 increased the penalty to a fine of not more than 9>1UU or imprisonment for not moré than thirty days, or both.
Reference
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- Commonwealth vs. Stephen F. Krasner
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