Com. v. Jordan

Citation207 Mass. 259,93 N.E. 809
PartiesCOMMONWEALTH v. JORDAN.
Decision Date03 January 1911
CourtUnited States State Supreme Judicial Court of Massachusetts

Jan. 3 1911.

COUNSEL

John J. Higgins, Dist. Atty., for the Commonwealth, C. W Bartlett, H. H. Pratt, J. S. Sullivan, and A. T. Smith, for defendant.

OPINION

MORTON J.

This was an indictment for the murder by the defendant of one Honora C. Jordan, who was his wife. There was a verdict of guilty of murder in the first degree, and the case is here on the defendant's exceptions and on his appeal from an order sustaining a demurrer to a plea to the jurisdiction. There are two bills of exceptions, the first relating to matters arising at and during the trial and prior thereto, and the other to matters arising at the hearing on the motion for a new trial.

We take up first the first bill of exceptions, and shall consider the various exceptions so far as practicable in the order in which they were taken.

Upon the return of the indictment and before the defendant had pleaded to it he made a motion that the district attorney be ordered to furnish him with a copy of the autopsy made by Thomas M. Durell, M. D., the medical examiner, and of the alleged confession by the defendant to the police officers of Boston; also that he be ordered to furnish his attorneys with the names of all of the witnesses summoned before the grand jury when the indictment was found, and with a transcript of the evidence upon which the grand jury found the indictment, and to afford them an opportunity to inspect all weapons and other exhibits and things in the possession of the district attorney; and, lastly, that he be ordered to furnish to certain physicians designated by him portions of the body taken at the time of the autopsy by the medical examiner. Before the hearing upon the motion the district attorney in accordance with the practice which prevails here (Commonwealth v. Edwards, 4 Gray, 1) furnished the defendant with a list of the witnesses before the grand jury, but declined to do any of the other things specified in the motion. At the hearing the motion was denied except as to the list of witnesses before the grand jury which the district attorney had already furnished to the defendant. As to that it was granted. The defendant excepted to the refusal to allow the motion in respect to the other particulars specified. As to those matters it is plain, we think, that it was within the discretion of the court to grant or refuse the motion. The motion was not in any just or proper sense a motion for a bill of particulars, but was rather an attempt (we do not use the word 'attempt' in any invidious sense) to compel the commonwealth to disclose in part at least the evidence on which it relied. There is no rule of law which requires the commonwealth to do that or which gives a defendant the right to ask it. So far as the information specified, or any other information in the possession of the commonwealth, was necessary in order to enable the defendant to understand the nature of the crime with which he was charged and to prepare his defense, he was entitled to have it furnished to him in the shape of a bill of particulars, upon a proper motion to that effect. But, as we have said, this was not such a motion. The office of a bill of particulars is not to compel the commonwealth to disclose its evidence but to give the defendant such information in addition to that contained in the complaint or indictment in regard to the crime with which he is charged as law and justice require that he should have in order to safeguard his constitutional rights and to enable him fully to understand the crime with which he is charged and to prepare his defense. Undue stress should not be laid upon the form of the motion, but it should at least appear that without the information which is desired justice will not or may not be done. See Com. v. Snelling, 15 Pick. 321. There is no statutory provision requiring the district attorney to furnish the defendant with a copy of the autopsy, though of course he can do so if he sees fit. Rev. Laws, c. 24, § 10. In the present case, even if we assume in favor of the defendant, without so deciding, that we have power to revise the action of the superior court, we discover nothing that should lead us to do so. This exception must therefore be overruled.

At the same time that the defendant filed the motion which we have been considering, he also filed a motion to quash the indictment on the ground that the alleged offense was not fully, plainly, formally and substantially described, or described in such a manner as to apprise the defendant of the exact nature and cause of the offense intended to be charged, or to enable him to avail himself of his conviction or acquittal in a further prosecution for the same crime, or to inform the court of the facts alleged, so that it could decide whether they were sufficient to support a verdict if one was rendered against the defendant, and also on the ground that Rev. Laws, c. 218, under which the indictment was drawn, was unconstitutional and void under article 12 of the Massachusetts Declaration of Rights and articles 5 and 14 of the amendments to the Constitution of the United States. The motion to quash was overruled and the defendant excepted. The indictment is in the form prescribed for murder in the 'schedule of Forms of Pleadings' annexed to Rev. Laws, c. 218. There is no count at common law, and that is said by the defendant to distinguish this case from other cases of indictment for murder in which similar questions as to the constitutionality of the statute have been raised. It is true, as the defendant contends, that in previous cases of murder there has been a count at common law added to the count under the statute; but nevertheless we think that the question as to the constitutionality of the statute must be regarded as having been settled by previous decisions in a variety of cases in the affirmative and, it seems to us, rightly so. Com. v. McDonald, 187 Mass. 581, 585, 73 N.E. 852; Com. v. Snell, 189 Mass. 12, 75 N.E. 75, 3 L. R. A. (N. S.) 1019; Com. v. Sinclair, 195 Mass. 100, 80 N.E. 799; Com. v. Bailey, 199 Mass. 585, 85 N.E. 857; Com. v. King, 202 Mass. 379, 384, 88 N.E. 454. In Com. v. Storti, 177 Mass. 339, 58 N.E. 1021, the court expressly declined to give any countenance to the suggestion that the statute was unconstitutional. The purpose of the constitutional provisions relied on is to secure to the accused such a description of the offense with which he is charged as will enable him fully to understand it and to prepare his defense. Com. v. Robertson, 162 Mass. 90, 38 N.E. 25. So far as enabling a defendant to understand the offense with which he is charged is concerned there can be no just ground of objection to the statutory form of indictment. If A. is charged in an indictment with having at a certain time and a certain place which are specified assaulted and beaten B. with the intent to murder him, and with having by such assault and beating killed and murdered the said B., A. cannot fail to understand from the indictment itself that the crime with which he is charged is the murder of B. at the time and place specified. Allegations as to how he killed B. would not help him to understand any better the crime with which he is charged than, as was said in substance by Wells, J., in Com. v. Woodward, 102 Mass. 155, 160, a particular description of the wound would help the defendant to understand for what injury he was called upon to answer. No question could arise as to the sufficiency of the facts alleged to support a conviction, or to embarrass the defendant if he should have occasion to file a plea of former conviction or acquittal. If the defendant should require a more particular description of the manner in which and the means by which the alleged crime was committed in order to enable him to prepare his defense, and the indictment could not for that reason be regarded as describing the crime charged 'fully and plainly, substantially and formally,' the statute (Rev. Laws, c. 218, § 39) gives him an absolute right to such particulars as it may be necessary for him to have in order to prepare his defense, and his constitutional rights are thus fully protected. Com. v. Snell, supra; Com. v. McDonald, supra; Com. v. Sinclair, supra; Com. v. Bailey, supra; Com. v. King, supra. The means by which a murder is committed do not constitute an essential part of the crime and therefore need not be alleged in the indictment under Rev. Laws, c. 218, § 21. It is no doubt true, as contended by the defendant, that allegations as to the means by which and the manner in which the homicide was effected were formerly regarded as essential to the validity of an indictment for murder. But the object of the statute is to simplify criminal pleading, and the question before us is whether, in its efforts to do so, the Legislature has gone so far as to infringe upon the constitutional rights of the accused. For reasons given above we do not think that it has. It follows from the construction and effect which we have given to the statute that, as was said by the Supreme Court of the United States in a case arising under a somewhat similar statute in New Jersey: 'It cannot be held that he [the prisoner] was proceeded against under an indictment based upon statutes denying him the equal protection of the laws, or that were inconsistent with due process of law as prescribed by the fourteenth amendment of the Constitution of the United States,' or, we may add, by the fifth amendment. This exception also must be overruled.

The defendant seasonably filed a plea to the jurisdiction on the ground that the grand jury which returned the indictment was irregularly and...

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