Com. v. Trefethen

Decision Date20 October 1892
Citation157 Mass. 180,31 N.E. 961
PartiesCOMMONWEALTH v. TREFETHEN et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

A.E. Pillsbury, Atty. Gen., for the Commonwealth.

John D Long and Wm. Schofield, for defendants.

OPINION

FIELD C.J.

The principal exception is to the refusal of the court to admit the testimony of Sarah L. Hubert. The exceptions recite that: "Sarah L. Hubert, a witness called in behalf of the defendant, testified that her business, which she advertised in the newspapers, was that of a trance medium; that on December 22, 1891, in the forenoon, after 10 o'clock, a young woman called at her place of business in Boston for consultation. There was sufficient evidence to go to the jury of her identification as Deltena J. Davis. Upon objection being made to the testimony of this witness, counsel for the defendants stated to the court, aside from the jury, that they offered to prove by this witness that at the interview on December 22d, the young woman aforesaid stated to the witness that she was five months pregnant with child, and had come to consult as to what to do, and added later in the interview that she was going to drown herself. The court refused to admit the testimony, and the defendants duly excepted." The exceptions also recite that "the evidence offered in behalf of the commonwealth was wholly circumstantial, and tended to show that on December 23, 1891, Deltena J. Davis left her home in Everett at about 7 o'clock in the evening, and was last seen on the corner of Ferry street and Broadway, which is near her home in said Everett, at about 25 minutes of 8, the same evening. On the 10th day of January, 1892, her dead body was found in the Mystic river, a short distance below the Wellington bridge, about three miles from her home. There were no marks of violence on the body when found, nor was there any evidence that poison had been administered, nor did her clothing show any signs of violence. *** The physicians called in behalf of the commonwealth testified that the cause of death was drowning, and that, from the stage which digestion had reached, death occurred between two and one half and three and one half hours after the deceased had eaten her last meal. There was evidence that the deceased ate her supper about 5 o'clock on the evening of December 23d, and that the partly digested food found in her stomach corresponded with that which it was testified she ate at that meal. The deceased was unmarried, and at the time of her death was pregnant with a male child, and was about five months advanced in the state of pregnancy. The defendants contended and argued, without objection, that all the evidence introduced in behalf of the commonwealth was reasonably consistent with the theory that the deceased came to her death by suicide. There was evidence in the case tending to negative the circumstances relied upon by the commonwealth, and to support the theory of suicide."

At the argument in this court the attorney general asked that if the kind and amount of evidence tending to support the theory of suicide should be thought by the court to be important, the exceptions might be amended so as to show exactly what this evidence was; and he intimated that, in his opinion, this evidence was so slight as to be unworthy of serious consideration. We understand that by "evidence" the attorney general meant direct evidence tending to prove suicide. Without considering what remedy, if any, is open to the attorney general in a criminal case where there is a reason to suppose that the exceptions taken by the defendant and allowed by the court are not sufficiently full, we are of opinion that in the present case the facts are such that suicide would naturally suggest itself as a possible explanation of the cause of death, and that, if it be true that the direct evidence tending to prove suicide is inconsiderable, yet the circumstances afforded evidence in support of the theory of suicide which must be considered by the jury. The amendment, therefore, if it were made, and were of the character suggested, would afford no aid to the court in determining the questions of law raised by the exceptions.

A few minor suggestions of the attorney general may be briefly disposed of. There was evidence on the part of the commonwealth that the deceased did not leave her home on the 22d of December until 3 o'clock in the afternoon, and that she returned home between 8 and 9 o'clock, and the attorney general argues that "this furnishes sufficient reason for the exclusion of the evidence" offered "in the discretion of the court." But the jury might have disbelieved this evidence of the commonwealth, or, if they believed it, might also have believed that the deceased had the interview with Sarah L. Hubert in the afternoon, rather than in the forenoon, of December 22d. The attorney general also argues "that the statement was so remote in point of time from the disappearance and death of Tena Davis that it was within the discretion of the court to exclude it for this reason." When evidence of declarations of any person is offered for the purpose of showing the state of mind or intention of that person at the time the declarations were made, the declarations undoubtedly "may be so remote in point of time, or so altered in import by subsequent change in the circumstances of the maker, as to be wholly immaterial, and wisely to be rejected by the judge." It has been many times said that "some limit must, of course, be had in applying practically the rules which govern the admission of this evidence." This subject is considered in Com. v. Abbott, 130 Mass. 472, and in the cases there cited. There is undoubtedly a discretion to be exercised by the judge or judges presiding at the trial in the admission or rejection of this kind of evidence; but it is not an absolute discretion, and the exercise of it, when the facts appear, may be reversed by this court. If the declaration, evidence of which was offered in the present case, had been made by the deceased two or three years before her death, when she was not pregnant with child, and did not know the defendant, it might well have been held by the presiding judges to have been of no significance in the case.

In the case at bar the evidence offered was that the declaration of the deceased was made the day before her death, and was made in a conversation concerning her pregnancy, which continued until her death. The declaration, therefore, was not made at a time remote from the time of her death, and there had been no change of circumstances which made it inapplicable to the condition of the deceased at the time of her death. It was clearly competent for the jury to find from the evidence recited in the exceptions that, if Deltena J. Davis had an intention to commit suicide on December 22d, she continued to have the same intention on December 23d. If the evidence, in its nature, was admissible, the court, on the facts stated, could not exclude it on the ground that from the lapse of time or change of circumstance it had ceased to be material. It ought to be said that there is nothing in the exceptions indicating that the presiding judges refused to admit the evidence on the ground that it was in their discretion to admit or reject it. They probably considered the question presented as settled by the decision of this court in Com. v. Felch, 132 Mass. 22.

The main argument of the attorney general is: First, that it is immaterial whether the deceased, at or before the time of her death, had or had not an intention to commit suicide; and secondly, that, if she had such an intention, it could not be proved by evidence of her declarations that she was going to drown herself. The burden was on the commonwealth to prove beyond a reasonable doubt that the defendant killed the deceased, and to do this the jury must be satisfied beyond a reasonable doubt that she did not kill herself. The nature of the case proved by the commonwealth was such that it was not impossible that she had committed suicide. If it could be shown that she actually had an intention to commit suicide, it would be more probable that she did in fact commit it than if she had had no such intention. If it could be shown that during the week before her death she had actually attempted to drown herself, and had been prevented from doing it, it seems manifest that this fact, according to the general experience of mankind, would have some tendency to show that she might have made a second attempt, and accomplished her purpose. It may be true that an unmarried woman, pregnant with child, may some time say that she will commit suicide when she has no serious intention of doing it; or, if she has such an intention, she may not carry it into effect, although she may have an opportunity; but it is impossible to say that the actual existence of such an intention does not tend to throw some light upon the cause of death of such a woman when found dead under circumstances not inconsistent with the theory of suicide. It is a question of more difficulty whether evidence of the declarations of the deceased can be admitted to show such an intention. The argument, in short, is that such evidence is hearsay. It is argued that such declarations are not made under the sanction of an oath, and that there is no opportunity to examine and cross-examine the person making them, so as to test his sincerity and truthfulness, or the accuracy and completeness with which the declarations describe his intention or state of mind; and that, even if such declarations would have some moral weight in the determination of the issue before the court, they are not within any of the exceptions, to the exclusion of hearsay, which the common law...

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