Com. v. Bearse
| Decision Date | 30 December 1970 |
| Citation | 265 N.E.2d 496,358 Mass. 481 |
| Parties | COMMONWEALTH v. Frederick BEARSE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Alton F. Lyon, Rockland, for defendant.
Dennis L. Collari, Asst. Dist. Atty., for the Commonwealth.
Before TAURO, C.J., and SPALDING, KIRK, REARDON and QUIRICO, JJ.
The defendant was indicted from murder in the first degree, pleaded not guilty, was found guilty of murder in the second degree, and was sentenced to the Massachusetts Correctional Institution at Walpole for life. The trial was held subject to G.L. c. 278, §§ 33A--33G. The case is before us on a transcript of the evidence, a summary of the record and the defendant's assignments of error.
Certain facts are not disputed. On the evening of April 1, 1969, Frederick Bearse, Jr. Familiarly known as Ricky, aged sixteen, the younger son of the defendant, was fatally shot through the heart by a bullet from an 8 mm. German Mauser rifle. Admittedly, the rifle was in the hands of the defendant when the fatal shot was discharged. The shooting took place in the family dwelling on Pierce Street, Rochester, where the defendant lived with his wife, their older son, Michael, age twenty-two, and Ricky. The couple also had two married daughters who lived elsewhere. Ricky attended the regional high school and did odd jobs for neighbors and others in his spare time for spending money. Michael was regularly employed and contributed $10 a week for his support. Michael had served two years in the army, including a tour in Vietnam.
Other facts which we take to be true are these. The defendant was born in 1918. He and his wife were married in 1941. They were approximately the same age. The defendant then worked as a projectionist in moving picture theatres in the Cape Cod area. In 1944 he was inducted into the military service. He was discharged in 1945. His principal employment immediately thereafter again was as a projectionist. He reenlisted in 1948 and from that time forward made the army his career until he was retired in 1967 with a grade equivalent to that of sergeant. During his career he was assigned to stations in the United States, Europe and Asia. All of his service was in the Signal Corps. His military specialty had nothing to do with weapons, but related mainly to the repair and operation of motion picture equipment and the making of motion pictures at the pictorial center. The only times he got home, other than when he was stationed in New York, were during his annual thirty-day furloughs.
During the defendant's service a monthly allotment was sent home for the support of his family. When he retired from the army and returned to Rochester he was 'pretty much a stranger to' his wife. His monthly retirement pay was initially $174 a month; it was later increased to $184 a month. The check arrived the first day of each month. He regularly indorsed the check '(a)t noontime when it came in the mail' and gave it to his wife who 'had the handling of the funds' and who testified: 'I always gave him some * * * (f)or his own use * * * about $60 a month,' maybe, at times, $30.
The family lived on a 'rather tight' budget. The defendant worked only a few weeks a year, at cranberry time, after his retirement. His wife had not worked for five years and during the five preceding years had worked only during the cranberry season.
The defendant liked to hunt. During the duck hunting season, he was seen almost every morning walking across the fields to go hunting. Occasionally Ricky went hunting with him. They then hunted as a team. In the Fall of the year, the defendant went to Maine to hunt deer for a month or two weeks. For deer hunting in Maine he used the Mauser rifle. It could not be used for hunting in Massachusetts.
The defendant habitually slept on a couch in the living room on the first floor of the dwelling; his wife slept in a bedroom on the first floor. Ricky's bedroom was on the second floor above the kitchen. In the floor of Ricky's bedroom there was a hot air register.
The defendant kept all of his guns in a closet in his wife's bedroom. They consisted of several shotguns, a caliber .22 rifle, and the Mauser. The defendant's clothing and his wife' clothing were also kept in the same closet where the guns were stored.
From time to time the defendant had criticised his two sons for prolonged telephone conversations. Sometime in 1968 there were a number of nuisance calls, i.e., the telephone would ring and when answered, the party calling would hand up. The family asked that they be given an unlisted number and this was done. In January, 1969, in exasperation at lengthy telephone conversations by the boys the defendant had torn the instrument from the wall and its use was not restored. He had likewise been critical of the time each boy spent taking a hot shower, requiring for the other the reheating of the limited water supply in the tank from the gas bottle outside the dwelling.
Never, however, had the defendant offered or used physical violence against any member of the household, wife or children, or against anyone else. The defendant was 5 feet 4 inches tall, and weighed about 135 pounds.
There was no eyewitness to the shooting on April 1, 1969. Almost all of the testimony of the events of the day came from the defendant's wife. Ricky left the house at 7 A.M.; Michael at 8 A.M. Mrs. Bearse then saw her husband drinking wine from a quart bottle. Around noontime on that day, 'that was our pay day,' she went to Wareham to cash 'the (p)ension check,' paid the bills and came home with $90 which she gave to the defendant for the grocery bill. 1 About 3:30 P.M. her husband came home from work. He was very 'intoxicated' and lay down on the couch and went to sleep. Ricky came home at 5 o'clock, had his supper and shortly thereafter left. Ricky returned at 7 o'clock. The defendant was awake and said he was going to turn the gas off; the boys were not to take showers. Ricky offered his father $3, but he threw it on the floor and said he did not want it. Her husband was not then intoxicated. Ricky left the house. The defendant's wife went to a neighbor's house at 7:30 P.M. One hour later she returned home. The gas for the gas stove had been turned off. She felt depressed; got into her bedclothes and went upstairs to Ricky's bedroom to lie down. Her head was near the warm air register. Her husband was watching television in the living room. She heard her husband slam a door. He called her downstairs. She went down; 'ha(d) a conversation with him,' saw the gun on the footstool and saw a shell in his hand, a shell similar to ones he had in his drawer. She returned upstairs to Ricky's bedroom, and again had her head near the opening in the floor. After fifteen minutes she heard Ricky enter the house. He went to the kitchen sink and began to brush his teeth. She heard her husband walk from the living room through the dining room and stop; heard her husband say something and then heard Ricky say, 'Don't do it, Dad.' Then she heard a gunshot. The entire sequence took only a few seconds. Pursuant to the defendant's instructions his wife called the police from a neighbor's house.
The defendant took the stand. He testified that it was an accident, that he told the police it was his fault, that the rifle had a double trigger mechanism with which he was unfamiliar, that unknown to him there was a bullet in the chamber. He had examined the magazine, as he habitually did, and saw that it was empty. He did not look into or put his finger into the chamber. His purpose in having the gun in his hand was to ask Ricky to clean it with one of the several cleaning fluids which Ricky had in the house and which were acquired from Ricky's part-time employer. When cleaned the defendant intended to sell the rifle.
The defendant has argued...
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What Justice Requires: Equal Protection Clause Issues with the Massachusetts Supreme Judicial Court's 33E Powers.
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