Com. v. Best

• Decision Date: 27 February 1902
• Parties: COMMONWEALTH v. BEST.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 492

62 N.E. 748

COMMONWEALTH v. BEST.

Supreme Judicial Court of Massachusetts, Essex.

February 27, 1902

COUNSEL W. Scott Peters, Dist. Atty., for the Commonwealth.

Jas. H Sisk and N. D. A. Clarke, for defendant.

OPINION

HOLMES C.J.

This is an indictment for murder upon which the defendant has been found guilty of murder in the first degree. The case is here on exceptions. The first exception is to the overruling of a motion to quash the panel because the clerk in issuing the venires did not 'require from each town and city a number of jurors as nearly as may be in proportion to their respective number of inhabitants,' as required by Pub St. c. 170, § 11. Com. v. Walsh, 124 Mass. 32, 37. The object of this enactment is not to benefit the prisoner but is expressly stated to be 'to equalize as far as possible the duty of serving as jurors.' The exception might, perhaps, be disposed of on the ground that the section gives the prisoner no rights, or, when no prejudice is shown, is merely directory as to him. See Friery v. People, 2 Keyes, 424, 452, 453; Forsythe v. State, 6 Ohio, 19, 21; Evans v. State, 109 Ala. 11, 19 So. 535. But it is unnecessary to consider that answer, because, as was decided in a trial for murder in this court, when there is no ground for suspecting misconduct or partiality, the true construction of the statute is not 'such as to require that proportion to be observed in every particular occasion when a jury is to be summoned. That indeed is practically impossible. The statute relates equally to civil cases and to criminal cases. In many counties of this Commonwealth the number of towns is much in excess of the number of jurors that are ordinarily required, and it would be impossible to observe it in each particular case with accuracy and with literality. But the intention of the statute, as it seems to us, is to give general directions to the clerks in issuing the venires for jurors, that they shall be so apportioned, taking one term of the court with another, with reference to the population of the towns, that the duty of serving on juries a shall be equalized as far as possible.' Allen J., Trial of Henry K. Goodwin, 6, 7. This construction of the statute cuts the root of the defendant's argument. See, further, State v. Moore, 69 N.H. 102, 40 A. 702.

Bailey, the person alleged to have been murdered, was last seen alive at about a quarter past nine in the evening of October 8, 1900. Two witnesses testified without objection that between nine and ten they heard his milk wagon pass the house in the direction of Breakheart Hill farm, where he was living alone with the defendant. Nine days later his body was found, cut up, in a pond in Lynn, about six miles from his farm. The government contended that Bailey was killed shortly after his supposed return home and was at once cut up and carried to the pond, and it was not disputed that the movements of Bailey's wagon after his return home were material. These two witnesses testified to having heard a vehicle go by their house, in the direction from the farm, between ten and eleven. They both had described Bailey's wagon as having a rattle known to them, and one of them also mentioned a peculiar sound made by the horse's hoofs. Subject to exception they were allowed to state that it was the same team that had passed before,--Mr. Bailey's team. The objection is only to allowing an identification by the witnesses through hearing alone, instead of leaving that question to the jury, confining the witnesses to stating the similarity of the sounds to those that had been heard before from the wagon going to the farm. (The road was not traveled beyond the farm, so that it might be assumed that any vehicle coming from that direction came from the farm.) It seems not to need argument to show that this evidence was admissible. Com. v. Hayes, 138 Mass. 185; State v. Rainsbarger, 74 Iowa, 196, 203, 204, 37 N.W. 153. So as to an exception, not argued, to allowing a witness to testify that two shots heard between half past nine and ten came from the south or southwest, the direction of Breakheart Hill farm as stated by him. Com. v. Sturtivant, 117 Mass. 122, 133, 19 Am. Rep. 401.

An exception was taken to testimony of the defendant's brother-in-law as to some incriminating conversation of the defendant. It now is argued that the communication was privileged because made to an agent of the defendant's lawyer. As to this it is enough to say without considering other questions, that it does not appear that the witness was acting as an agent, or that the communication was made to him in the belief that he was an agent, or in confidence other than reliance upon the witness' personal friendship.

It was shown that the defendant had accounted for Bailey's absence by the suggestion that there was a reward out for Bailey's arrest because of...