Excerpts from "infernal machine" cases ----------------------------------------------------------------------- 360 Mass. 859, 277 N.E.2d 305 Supreme Judicial Court of Massachusetts, Suffolk. COMMONWEALTH v. Edward F. KENNEDY. Argued Nov. 1, 1971. Decided Dec. 6, 1971. The defendant was convicted of unlawful possession of an infernal machine in violation of G.L. c. 266, s 102A, and appeals under G.L. c. 278, ss 33A-- 33G. A police officer and a Federal investigator testified that they saw the defendant hand 'something' to one Labbe. Labbe fled, but was soon caught. In Labbe's pockets were cartridges and a bottle of acid; on the ground near him were two guns, an automobile ignition key, and a 'pyrotechnical bomb shell.' Contrary to the defendant's contention, the jury could infer that the 'something' was the 'bomb shell' from testimony that Labbe ran, 'holding whatever it was he had in front of him,' 'with the objects at his chest,' and that the defendant later said he knew the device was a bomb. There was expert testimony that the device was explosive and would cause extensive property damage and personal injury. The judge properly instructed the jury that if they believed the prosection witnesses they should conclude that the device was an infernal machine. The statute defines 'infernal machine' to include 'any device for endangering life or doing unusual damage to property, or both, by fire or, explosion.' ----------------------------------------------------------------------- 7 Mass.App.Ct. 715, 389 N.E.2d 1034 Appeals Court of Massachusetts, Essex. COMMONWEALTH v. Raymond I. BUSHWAY. Argued April 10, 1979. Decided June 5, 1979. The defendant appeals from his conviction on an indictment found under G.L. c. 266, s 102A (as amended by St.1970, c. 422), charging him with possession of an infernal machine. The sole issue raised is whether there was sufficient evidence from which the jury could infer that certain lightweight plastic garbage bags containing gasoline were "device(s) for endangering life or doing unusual damage to property, or both, by fire or explosion, whether or not contrived to ignite or explode automatically and whether or not disguised so as to appear harmless." See note 1, Supra. We conclude that there was no error in the judge's denial of the defendant's motion for a directed verdict made at the close of the Commonwealth's case. Therefore, a finding by the jury that the plastic trash bags containing gasoline were devices within the meaning of the statute was warranted. However, such a device does not necessarily constitute an infernal machine unless it is to be used for an unlawful purpose and by an unlawful means as provided in G.L. c. 266, s 102A. Although it is conceivable that under another set of circumstances such a device could be used for a benign purpose, under the evidence in this case it would be a credulous jury that would believe that the bags were to be used for such a purpose. The evidence permitted the jury to find not only that bags containing gasoline were volatile and dangerous, but also that the defendant was aware of those qualities. An inference that the bags were to be used for an illicit purpose was both possible and reasonable. ----------------------------------------------------------------------- 23 Mass.App.Ct. 1006, 505 N.E.2d 215 Appeals Court of Massachusetts, Bristol. COMMONWEALTH v. Albert LOMBARDO, Jr. Argued Feb. 17, 1987. Decided March 23, 1987. A Bristol County grand jury returned nine indictments against the defendant alleging unlawful possession of various items, including heroin and marihuana, drug paraphernalia, a firearm, ammunition, stolen property, and an "infernal machine. There is no express requirement in the statute of an intent to use the device for an illicit purpose. The cigarette package, filled with explosive gunpowder, and disguised to appear harmless, could not reasonably be regarded as having any innocent use. Although it was not his burden to prove a possible innocent use, no such claim was made by the defendant, who admitted possessing the device. While the inference was strong that the defendant had a purpose of using the device in question unlawfully, the Commonwealth did not have the burden of proving that purpose as a separate element of the offense. ----------------------------------------------------------------------- 440 Mass. 296, 798 N.E.2d 275 Supreme Judicial Court of Massachusetts, Plymouth. COMMONWEALTH v. Thomas J. O'DAY, Third. Argued Sept. 5, 2003. Decided Nov. 7, 2003. The defendant, Thomas J. O'Day, III, was found guilty of possession of an infernal machine in violation of G.L. c. 266, § 102A. He appealed from the denial of his motion to suppress evidence seized in his residence and his motion to dismiss the indictment charging possession of a grenade simulator that was destroyed by the Commonwealth prior to trial. The Appeals Court concluded that the motion to suppress should have been allowed and therefore reversed the judgment. We granted the Commonwealth's application for further appellate review and affirm the conviction. A grenade simulator is a device employed by the military to simulate the noise and effects of a real grenade. The Commonwealth's expert, Trooper William P. Qualls, testified that these devices typically contain more "photo flash powder" than devices that have caused physical injuries in the past. This particular device had been modified: metal pellets or BBs had been encrusted on its exterior to serve as shrapnel when the device exploded, rendering it even more dangerous. Qualls testified, and the judge concluded, that the device could not be stored safely because heat, shock, or friction might have caused it to explode. Furthermore, testing the device would have required that it "be handled in an improper fashion ... not taught [to the State bomb squad]" and contrary to Federal guidelines. According to Qualls, when discovering an item that could potentially be a bomb, such as the device in this case, the police bomb squad employs a "render safe procedure:" they countercharge the device with an explosive material. That is what was done here. The police removed the device, and it was detonated four days later by members of the State police bomb squad who attached a blasting cap, placed it in a shallow hole and remotely triggered the explosion in a wooded area behind the State police barracks. An analysis of the dirt where the grenade simulator was detonated revealed that there was some flash powder inside the device. ----------------------------------------------------------------------- 442 Mass. 822, 817 N.E.2d 768 Supreme Judicial Court of Massachusetts, Plymouth. COMMONWEALTH v. Gregory W. CARTER. Argued Oct. 4, 2004. Decided Nov. 19, 2004. A Superior Court jury convicted the defendant, Gregory W. Carter, of possession of an infernal machine (G.L. c. 266, § 102A) and unlawfully cultivating marijuana (G.L. c. 94C, § 32C). The defendant appeals only from his conviction of possession of an infernal machine, claiming that the trial judge erred in denying his motion for a required finding of not guilty because the Commonwealth failed to show that he possessed a constructed infernal machine. The Appeals Court reversed the conviction. We granted the Commonwealth's application for further appellate review. Because we agree with the Appeals Court and conclude that merely possessing the components that could be used to construct an infernal machine is not enough to convict one of possession of an infernal machine, we reverse. We summarize the relevant facts. On October 15, 1999, pursuant to a search warrant, police searched the defendant's home and seized a brick-shaped object, confirmed to be C-4 plastic explosive, and a container holding ten percussion blasting caps. The police found the items in a drawer of a metal cabinet. The C-4 was inside a nylon bag, and the blasting caps were inside a plastic case. The plastic case containing the blasting caps was not inside the nylon bag, but was located toward the back of the drawer, which contained tools and other items. Here, the Commonwealth produced evidence that the defendant possessed both C-4 and blasting caps; however, the evidence shows that there was no assembly of the materials, but rather that they were stored separately. Massachusetts case law makes clear that a device "must be something which is made. It cannot be simply one element. It must consist of more than one part in order to be a device, instrument or machine or contrivance." By itself, the C-4 is not an infernal machine that could endanger life or do unusual damage to property, as required by G.L. c. 266, § 102A, because it is only one item and is not capable of detonating without a blasting cap. -----------------------------------------------------------------------