Com. v. Baker

• Decision Date: 13 May 1963
• Citation: 190 N.E.2d 555,346 Mass. 107
• Parties: COMMONWEALTH v. John H. BAKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 555

190 N.E.2d 555

346 Mass. 107

COMMONWEALTH v. John H. BAKER.

Supreme Judicial Court of Massachusetts, Bristol.

Argued April 1, 1963.

Decided May 13, 1963.

Solomon Rosenberg, New Bedford, Richard Paull, New Bedford, with him), for defendant.

Robert W. MacDonald, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C. J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ.

WILKINS, Chief Justice.

This is an indictment for murder. After our decision on a motion for bail, 343 Mass. 162, 177 N.E.2d 783, the defendant was tried and found guilty of murder in the first degree with a recommendation by the jury that the sentence of death be not imposed. He was sentenced to life imprisonment. G.L. c. 265, § 2 (as amended through St.1956, c. 731, § 12). In response to a motion for particulars the Commonwealth specified that the murder was committed at or near Horseneck Beach, Westport, between 5 p. m. and 7 p. m. on June 10, 1961, by discharging a firearm into the body of Herbert J. Straker, Jr.; and that the murder was committed with deliberately premeditated malice aforethought, but not with extreme atrocity or cruelty or in the commission or attempted commission of a crime punishable with death or imprisonment for life. At the trial which was made subject to G.L. c. 278 §§ 33A-33G, as amended, the defendant admitted the shooting but claimed that he acted in self-defence. The case is here on the defendant's appeal, which is accompanied by a summary of the record, a transcript of the evidence and the assignment of errors. The alleged errors relate to rulings on evidence, the denial of a motion for a directed verdict, and the denial of a motion for a new trial.

1. By St.1962, c. 453, G.L. c. 278, § 33E, was amended so as to broaden our powers in the review of capital cases. The amendment struck out the first sentence of the second paragraph of § 33E, and substituted the following: 'In a capital case as hereinafter defined the entry in the supreme judicial court shall transfer to that court the whole case for its consideration of the law and the evidence. Upon such consideration the court may, if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt, and remand the case to the superior court for the imposition of sentence. For the purpose of such review a capital case shall mean a case in which the defendant was tried on an indictment for murder in the first degree and was convicted of murder either in the first or second degree.' ¹

As before the amendment, the statute still consigns the facts as well as the law to our consideration, gives us the power and duty exercised by a trial judge on a motion for a new trial, and requires us to consider the whole case broadly to determine whether there was any miscarriage of justice. Commonwealth v. Gricus, 317 Mass. 403, 406-407, 58 N.E.2d 241. Commonwealth v. Cox, 327 Mass. 609, 614, 100 N.E.2d 14. Commonwealth v. Harrison, 342 Mass. 279, 297, 173 N.E.2d 87. The amended statute for the first time creates a duty upon our part to consider the degree of guilt. If upon our examination of the facts, we should, in our discretion, be of opinion that there was a miscarriage of justice in convicting the defendant of murder in the first degree, and that a verdict of guilty of murder in the second degree or of manslaughter would have been more consonant with justice, it is now our power and duty so to declare. This is a power which the trial court does not have.

With these factors in mind, we must weigh the evidence without the benefit of seeing the witnesses. Commonwealth v. Cox, supra, 327 Mass. at 615, 100 N.E.2d at 17. The surprising feature of the case is that a minor controversy could explode into the killing of a human being, particularly where the principals were acquainted only slightly, if at all. The defendant, about fifty years of age and a resident of Westport, was the owner of a private beach where, as a business, he ran a beach club. The decedent, also a resident of Westport, was fifty-five years of age. The defendant's testimony was that he did not really know the decedent and would not have recognized him had they met; that he remembered seeing him only twice before June 10, 1961; that the first time was in 1956 when the defendant drove a man to the decedent's house where the decedent, in what we shall describe as most derogatory terms, ordered the defendant to take the man away, adding, 'I'll kill him if you don't take him away'; and that the second time was in 1958 when the decedent was walking on the beach and was pointed out to the defendant.

On May 23, 1961, the decedent's wife became entitled to certain club privileges for her family and guests, for which the decedent paid $35, the lowest of three rates, and for which she received a card marked '1961 open house parking only,' and a copy of the club regulations, which stated that the parking card was 'good only on Lot #1.' Among others, there were rules that cards furnished for identification must be shown when required; that the gate would be open until sunset or until bathers departed, whichever was carlier; and that no pets were allowed.

On Saturday, June 10, 1961, there was much traffic because a sloop was grounded on the beach about 700 feet to the west of the defendant's property. ² About 4:30 p. m., while the defendant was at home, the decedent drove his wife and two 'large' Weimaraner dogs to the beach entrance. His white Cadillac was stopped by one Duffy, a special police officer of the town, first because he believed that the decedent was not a member, and then, when the decedent's wife said that she was, because of the dogs. The decedent said, 'You are not going to stop me or nobody else, John. I'm going in, dogs or no dogs.' Duffy told the decedent that he would inform the defendant, and that the decedent's check would be returned and his membership would cease. The decedent then withdrew.

The decedent drove to a neighboring inn, where he had a drink containing vodka. About five minutes later accompanied by a man, who was a member of the beach club, he drove his car and the dogs back to the beach. At the entrance to the defendant's property, he drove 'at a very high rate of speed,' forty to forty-five miles an hour, past Duffy, who 'had to jump back to avoid being hit, or for fear of being hit by the car.' After ten to fifteen minutes at the beach, where the car was parked on lot 3, to the decedent an unauthorized place, they returned to the inn.

At the bar the decedent found three men, Harney, Lees, and Reed, whom he drove to the beach in order to see the sloop. The dogs were still in the car. In the meantime at 5:22 p. m. the defendant had returned and was at the entrance, where Duffy was telling him about the decedent's visits, when the white Cadillac appeared again. The evidence is conflicting as to what then happened. According to Duffy, the car entered at an even faster rate than before, at more than forty-five miles an hour, and did not slow down or stop. According to Harney, the Cadillac had to stop because of two cars in the driveway. According to Reed, they did not stop at the gate, and an arm signal of the defendant was ignored. According to Lees, they came 'almost to a stop.' The defendant held his hand out with the fingers extending stationary, but the decedent continued by and picked up speed. According to the defendant, the white Cadillac 'came tearing in at a very fast rate of speed,' past Duffy. The speed was thirty-five miles an hour, and anything over fifteen or twenty miles an hour would be unsafe in that spot. The defendant held up his hand and yelled, 'Stop.' The car kept increasing speed, and continued on again into the third parking lot. As it was driven past the defendant, the driver hollered out of the window. The decedent's three companions heard, but testified that they did not know, the words used. According to the defendant, who did not at that time identify the person shouting, the last two words were 'you, Baker.'

We now reach the circumstances of the shooting, and shall first take up the testimony of the defendant. He got into his car and drove as fast as he could to the same parking lot, because he wanted to find out who it was who had come in at such an unreasonable rate of speed and had ignored the officer at the gate. He parked about 150 feet from the white. Cadillac. He then saw the two Weimaraner dogs jumping in the back of the car, and knew that the decedent probably was in the group. 'The men were all getting out of the car then and starting down on the beach, and so, of course, I knew that he had been over two times, and I felt that there was a chance that he might be making trouble. He had a reputation for being a troublemaker, and I was afraid that if I didn't protect myself, I would be in danger of being badly harmed or possibly killed by him. So I went to the pump house and got my gun.' He had previously blown a whistle. After getting the gun 'I started off down the beach to speak to them and ask them to take their car and the does off the parking lot. And I hurried as fast as I could. * * * And I overhauled them rapidly until I was probably within 100 feet of them. And then I blew a whistle at them.' The men made no response any more than they did to the previous blowing of the whistle. He then blew the whistle a third time, and all turned around. He did not definitely recognize any of them. When the men paid no other attention, '[t]hen I felt that they were deliberately ignoring me and I would have to bring their attention; and so I took the gun out of my pocket and fired it' into the sand to one side. The men turned around again and started back toward the defendant. The one who later turned out to be the deceased was in front. ...