
    Commonwealth vs. Lawton B. Kingsbury.
    Middlesex.
    May 7, 1979.
    August 10, 1979.
    Present: Hennessey, C.J., Braucher, Wilkins, Liacos, & Abrams, JJ.
    
      Breaking and Entering. Practice, Criminal, Directed verdict. Evidence, Judicial notice, Time of sunset. Words, "Night time,” "Dwelling house.”
    Evidence at a criminal trial was sufficient to warrant a finding that a breaking and entering occurred in the "night time,” as required by G. L. c. 266, § 15, even though there was no evidence as to .the precise time of sunset on the day the crime was committed. [752-755]
    Evidence at the trial of a defendant charged with breaking and entering a dwelling house in the night time with intent to commit a felony was sufficient to warrant a finding that the apartment broken into was a dwelling house within the meaning of G. L. c. 266, § 15, even though it had no furniture or other personal property in it. [755-757]
    Indictments found and returned in the Superior Court on January 12, 1977.
    The cases were tried before Garrity, J.
    After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
    
      Richard J. Hayes for the defendant.
    
      William L. Pardee, Assistant District Attorney, for the Commonwealth.
   Wilkins, J.

The Appeals Court sustained the defendant’s conviction of assault and battery but reversed his conviction of breaking and entering a dwelling house in the nighttime with intent to commit a felony. G. L. c. 266, § 15. Commonwealth v. Kingsbury, 7 Mass. App. Ct. 51 (1979). We granted the parties’ cross-applications for further appellate review.

Without further comment, we agree with the Appeals Court on the issues as to which the defendant has sought further appellate review. We disagree, however, with the Appeals Court’s conclusion on the issue as to which the Commonwealth has sought further appellate review: that the defendant’s conviction under G. L. c. 266, § 15, should be reversed due to the absence of any evidence that the crime occurred in the nighttime. We reject the defendant’s further argument that there was no evidence that the apartment he broke into was a dwelling house. We, therefore, affirm both judgments.

1. The Appeals Court concluded that the defendant’s motion for a directed verdict should have been allowed because the evidence did not warrant a finding that the breaking and entering occurred in the "night time” as required by G. L. c. 266, § 15. 7 Mass. App. Ct. at 55. Section 10 of G. L. c. 278 defines "night time” as "the time between one hour after sunset on one day and one hour before sunrise on the next day.” The Appeals Court viewed the Commonwealth’s evidence as showing "the break-in to have occurred sometime between the hours of 6:00 p.m. and 7:00 p.m.” on October 31, 1975. 7 Mass. App. Ct. at 55. There was no evidence as to the precise time of sunset on that day. The Appeals Court concluded that it could not "be said to be a matter of common knowledge that one hour after sunset on October 31, 1975, fell before 6:00 p.m.” Id. This statement assumes that the jury had to conclude that the break-in occurred at 6 p.m.

In considering the denial of the motion for a directed verdict, we must decide whether there was enough evidence concerning the time of sunset on October 31 to satisfy a rational trier of fact beyond a reasonable doubt that the sun had set more than one hour before the commission of the crime. Commonwealth v. Latimore, ante 671, 676-679 (1979). Jurors are entitled to rely on their general knowledge of matters commonly known within the community. See, e.g., Commonwealth v. Fitzgerald, 376 Mass. 402, 420 (1978) (atmosphere of fear in housing projects); Commonwealth v. McColl, 375 Mass. 316, 323 (1978) (not all criminals are insane); Commonwealth v. 707 Main Corp., 371 Mass. 374, 384 (1976) (views of average people in the community as an appropriate norm for deciding if a matter "appeals to prurient interest”); Crowe v. Ward, 363 Mass. 85, 90 (1973) (weather phenomena).

The Commonwealth introduced evidence of the date and time of the break-in and evidence that it occurred after dark. We note the special circumstance that the break-in occurred on Halloween, a day on which the time of the arrival of darkness is given particular attention. Based on evidence presented at trial and on their common knowledge, the jurors could have concluded beyond a reasonable doubt that the break-in occurred more than an hour after sunset.

The evidence presented by the Commonwealth showed that the break-in took place sometime after 6 p.m., probably no earlier than 6:15 p.m., and no later than 7:10 p.m. The evidence most favorable to the Commonwealth on the nighttime issue was that the break-in occurred at 7:10 p.m., not 6 p.m., as the Appeals Court assumed. There was evidence of the degree of darkness in the apartment. One witness testified that the defendant told him not to turn on the lights. Another testified that it was dark and that, when he turned on the lights, the defendant turned them off. He also testified that he could see across the room only when cars went by with their headlights on.

The jury were permitted to rely on their common knowledge that October 31 falls approximately halfway between the autumnal equinox and the winter solstice and that daylight saving time was not in effect on October 31, 1975. The jurors certainly had a general idea of the hour of sunset on Halloween, a night when neighborhood children traditionally have engaged in a mild form of extortion known as “trick or treat.”

Taking the evidence most favorable to the Commonwealth, and recognizing that a jury may use their general knowledge in determining what inferences may be drawn to establish a material fact not proved by direct evidence, we conclude that the case was properly submitted to the jury. The evidence warranted a conclusion beyond a reasonable doubt that the break-in occurred after 7 p.m. and that the sun had set more than one hour before. In fact, the jury would have been warranted in inferring that the sun had set considerably earlier than 6 p.m. The Appeals Court took the evidence least favorable to the Commonwealth when it disregarded the evidence of darkness, fixed the time of the break-in at 6 p.m., and concluded that the jury could not determine, as a matter of common knowledge, that the sun had set more than an hour before that.

In view of what we have said, it is not necessary to answer the Commonwealth’s argument that we should fill in the missing direct proof, or treat its omission as harmless error, by taking judicial notice that the sun set at approximately 4:40 p.m. E.S.T. on October 31, 1975. We note that some courts have taken judicial notice of the time of sunset to uphold burglary convictions. See, e.g., Mitchell v. State, 549 P.2d 96, 100 (Okla. Crim. App. 1976); Parish v. State, 523 S.W.2d 665, 666 (Tex. Crim. App. 1975). See generally Annot., 82 A.L.R.2d 643 (1962). Of course, courts may notice matters of common knowledge (e.g., Commonwealth v. Crehan, 345 Mass. 609, 611 [1963] [circulation of major newspapers in Boston area]) and matters verifiable by authoritative sources (e.g., Commonwealth v. Whynaught, 377 Mass. 14, 17-18 [1979] [accuracy of radar]). See K. B. Hughes, Evidence § 71 (1961); W. B. Leach & P. J. Liacos, Massachusetts Evidence 34-39 (4th ed. 1967). The right of a court to take judicial notice of subjects of common knowledge is substantially the same as the right of jurors to rely on their common knowledge. See 9 J. Wigmore, Evidence § 2570, at 542 (3d ed. 1940). However, proof of an essential element of a crime should not be supplied by judicial notice taken at the appellate level. United States v. Jones, 580 F.2d 219, 223-224 (6th Cir. 1978). The proper practice in a criminal trial is to submit all factual issues to the jury, including matters of which the judge may take judicial notice. See Fed. R. Evid. 201(g) (jury in a criminal trial not bound by fact judicially noticed); United States v. Jones, supra. Such a submission was made in this case. The jury were left to decide, based on the evidence, reasonable inferences, and matters of common knowledge, whether the break-in occurred more than one hour after sunset. Judicial notice as to the precise time of sunset was neither sought nor taken at the trial level. We would not supplement the Commonwealth’s proof on appeal by taking judicial notice of a fact not submitted to the jury.

2. The defendant argues that the evidence did not warrant a finding that he broke into a "dwelling house.” The Appeals Court did not reach this question because it concluded that the evidence did not warrant a finding that the break-in occurred in the nighttime. The defendant does not challenge the basic proposition that an apartment may be a dwelling house under G. L. c. 266, § 15. See R.A. Anderson, Wharton’s Criminal Law and Procedure § 423, at 45 (1957 & Supp. 1979); W.R. LaFave & A. W. Scott, Jr., Criminal Law § 96, at 712 (1972); R. Perkins, Criminal Law 201 (2d ed. 1969). He argues that the apartment in question was not a dwelling house at the time of the break-in because it had no furniture or other personal property in it and no one was actually living in it. There is no statutory definition of "dwelling house” as used in G. L. c. 266, § 15.

The evidence warranted the jury in finding the following facts. A previous tenant had moved out of the apartment on October 25. The new tenants had not moved their belongings in, although they had paid a deposit by October 31. The apartment had been repainted between October 25 and October 31. The new tenants took possession of the premises on October 28 and had permission to move in at that time. They had a key to the apartment, and it was they and a friend who found the defendant and others in the apartment on the evening of October 31. These tenants intended to live in the apartment, and one of them testified that he "lived” in the apartment on October 31, 1975.

The question before us has not often been considered by courts, presumably because a place for human habitation neither occupied nor furnished presents limited opportunities for the commission of a felony following a break-in. If a tenant has leased previously occupied premises and has moved in items of personal property, even though he has never spent a night there, those premises have been held to be a dwelling house, defined by statute as "any building of which any part has usually been occupied by any person lodging therein at night.” State v. Matson, 3 Or. App. 518, 519 (1970). See Commonwealth v. Brown, 3 Rawle 207 (Pa. 1832). An unoccupied but furnished summer home to which its owner intends to return has been held to be an "inhabited dwelling house.” State v. Lisiewski, 20 Ohio St. 2d 20 (1969) (5-2 decision). On the other hand, where a statute defined a dwelling house as inhabited if a person resided therein, even if it was temporarily unoccupied, an unoccupied apartment that had been rented for occupancy to begin after the date of the break-in was not "inhabited” because it was no one’s residence in the interim. People v. Valdez, 203 Cal. App. 2d 559, 563 (1962). An apartment used for a purpose other than habitation is not a dwelling house. Poff v. State, 4 Md. App. 186, 189 (1967). An intention to rent a building as a dwelling at some future time does not make it a dwelling house. See Marston v. State, 9 Md. App. 360, 363-364 (1969).

In this case, the new tenants had taken possession of the apartment with an intention to live there. They had a right of access and a right to move in at the time of the break-in. One tenant testified that he regarded the apartment as his place of residence. In fact, it was the tenants who confronted the defendant in the apartment. We need not decide whether an apartment between tenancies is a "dwelling house” under G. L. c. 266, § 15, because the jury could have found beyond a reasonable doubt that the new tenancy had commenced. The absence of any personal property from the apartment is not dispositive.

Judgments of the Superior Court affirmed. 
      
       The Appeals Court remanded the case to the Superior Court for resentencing under G. L. c. 266, § 18, for breaking and entering a "building” in the daytime. Commonwealth v. Kingsbury, 7 Mass. App. Ct. 51, 56 (1979). There is no statutory crime of breaking and entering a dwelling house in the day time.
     
      
       The time of sunset is not technically an element of the crime of burglary. The prosecution must prove not simply the time of sunset but that the break-in occurred one hour or more after sunset. The time of sunset is so closely related to the element of "night time,” however, that taking judicial notice of it would, in many cases, supply a missing link in the Commonwealth’s proof of an essential element.
     
      
       The proposed Rules of Evidence for Massachusetts Courts, Article II, Judicial Notice, Rule 201, Judicial Notice of Adjudicative Facts, states in clause (g): "In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.” The Advisors’ Notes state that the committee elected to follow the Federal Rule, commenting that "[t]he committee felt that to instruct a jury in a criminal case to accept as conclusive any fact judicially noticed is inappropriate as it would be contrary to the spirit of the Sixth Amendment right to a jury trial.”
     
      
       In the case before us, the defendant took a young boy to the apartment with the intent to commit an indecent assault.
     
      
       In Commonwealth v. Barney, 10 Cush. 478 (1852), we held that the evidence did not support a charge of burning the dwelling house of one Wheaton because the owner had never occupied the building as a residence and the building had been unoccupied by anyone for many months. We noted that “the dwelling-house burnt must be an occupied house; a dwelling-house in which some one lives, using the term in a liberal sense, and treating the cases of mere temporary absence as substantially a continued occupation.” Id. at 480. The statutory language concerning arson of a dwelling house now includes the words “occupied or unoccupied.” G. L. c. 266, § 1, as amended through St. 1974, c. 281, § 1. See Commonwealth v. Murphy, 1 Mass. App. Ct. 71, 75 (1973).
     