The defendants seek to raise three issues on appeal from their convictions after a jury trial of robbery while armed and masked, and attempted kidnapping. There is neither substance to their contention, unsupported by any authority, that they were in some way deprived of effective assistance of counsel in not being permitted to sit at counsel table during trial, nor is there support in the record before us for their insistent argument that they were prejudiced in the assignment of their cases to the session in which they were brought to trial. Indeed, they make no effective claim that they were accorded anything other than a fair trial by the judge presiding over that session or that his conduct in the course of the trial was other than impeccable. We turn then to the remaining issue.
The pertinent evidence may be summarized as follows. The defendant Goldman and one Chiodi
The defendants argue that because the victim became aware that Goldman possessed a revolver only after her handbag had been snatched by Chiodi that their motion for a directed verdict was erroneously denied. It is their contention that an essential element of the crime of armed robbery is that the victim be aware that a weapon is being used. We disagree.
General Laws c. 265, § 17, as appearing in St. 1952, c. 406, § 1, provides that one who assaults and robs another while "being armed with a dangerous weapon" shall be punished. The statute manifests no requirement that the victim be aware of the assailant's possession of the weapon. The Supreme Judicial Court has not had occasion to address itself to the precise question raised here by the defendants. However, a succession of cases demonstrates that possession of a dangerous weapon, rather than its use, is the essential element of § 17. "It is not necessary to show the use of a dangerous weapon in proving the offence of robbery while armed. The gist of the offence is being armed, not the use of the weapon." Commonwealth v. Nickologines, 322 Mass. 274, 277 (1948). Commonwealth v. Mowry, 11 Allen 20, 20-23 (1865). Commonwealth v. Williams, 312 Mass. 553, 555-556 (1942). Commonwealth v. Chapman, 345 Mass. 251, 255 (1962). Commonwealth v. Blackburn, 354 Mass. 200, 205 (1968). In Commonwealth v. Cody, 165 Mass. 133, 137 (1896), the court held that an indictment for what is now § 17 need not allege how the dangerous weapon was used or intended to be used. It follows that the indictment need not allege, nor need the Commonwealth prove, that the dangerous weapon was used in such a way that the victim was aware of its presence.
The offense under § 17 is but an aggravated form of common law robbery and is distinguishable by the manner of punishment and not by the material elements composing common law robbery except for the presence of a dangerous
Some jurisdictions have interpreted statutory language similar to that of G.L.c. 265, § 17, as not requiring knowledge by the victim that the robber possesses a dangerous weapon. People v. Hall, 105 Cal.App. 359, 361 (1930). People v. Rainey, 125 Cal.App.2d 739, 741 (1954). Cal. Penal Code § 211A (Deering 1971). State v. Buggs, 219 Kan. 203, 207 (1976). Kan. Stat. Ann. § 21-3427 (Weeks 1974). But unlike G.L.c. 265, § 17, other State statutes have expressly required that the weapon be used or displayed during the robbery. See generally Perkins, Criminal Law 285 (2d ed. 1969). See also Model Penal Code § 222.1, Comment 5 (Tent. Draft No. 11, 1960).
Neither Commonwealth v. Tarrant, supra, nor Commonwealth v. Delgado, 367 Mass. 432 (1975), relied on by the defendants, strengthens their contention that the victim must be aware that the assailant is possessed of a dangerous weapon. Both cases deal primarily with what constitutes a dangerous weapon under § 17; and the handguns employed by the defendants in the instant case were unquestionably dangerous.