Com. v. Burke

• Decision Date: 02 July 1959
• Citation: 159 N.E.2d 856,339 Mass. 521
• Parties: , 77 A.L.R.2d 451 COMMONWEALTH v. John M. BURKE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 856

159 N.E.2d 856

339 Mass. 521, 77 A.L.R.2d 451

COMMONWEALTH v. John M. BURKE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 4, 1959.

Decided July 2, 1959.

Thomas E. Dwyer, Boston (John J. White, Boston, with him), for defendant.

Angelo Morello, Asst. Dist. Atty., Boston, for Commonwealth.

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN, and WHITTEMORE, JJ. SPALDING, Justice.

Marie F. Burke and the defendant were husband and wife. Shortly before eleven o'clock on the night of Saturday, September 28, 1957, Mrs. Burke was found lying unconscious on Broadsound Avenue in Revere near the northwesterly corner of Broadsound and Nerious avenues. She died twenty-seven hours later at the Massachusetts General Hospital. Death was caused by a fractured skull and lacerations of the brain. Subsequently the defendant was accused of causing her death in an indictment charging murder in the second degree. Having been found guilty of manslaughter, he brings the case here by appeal with numerous assignments of error. G.L. c. 278, §§ 33A-33G.

1. The defendant asserts that the judge erred in denying his motions to strike two of the Commonwealth's answers to his motion for particulars (assignment 57). The answers, which related to the place of assault and the instrument used in the assault, were as follows:

'The assault was committed in the city of Revere * * * on American Legion Highway or Broadsound Avenue or Nerious Avenue or on all of said streets, avenues or highways or in the vicinity or surrounding area of said streets, avenues or highways. The Commonwealth is unable to specify more fully at this time.'

'The Commonwealth specifies that Marie T. Burke came to her death because of an assault upon her by the defendant by the use of his hands or feet or by the use of both his hands and feet or by the use of a weapon or other instrumentality alone or in conjunction with the use of his hands or feet or both. A true description of said weapon or other instrumentality being unknown to the Commonwealth at this time.'

The matter of further particulars was within the discretion of the trial judge. Commonwealth v. Mercier, 257 Mass. 353, 364, 153 N.E. 834; Commonwealth v. Bartolini, 299 Mass. 503, 509, 13 N.E.2d 382. There was no abuse of discretion. 'All that is required is that the indictment, read with the bill of particulars, be sufficient fully, plainly, substantially and formally to give the defendant reasonable knowledge of the crime with which he is charged.' Commonwealth v. Hayes, 311 Mass. 21, 25, 40 N.E.2d 27, 31. The Commonwealth was required to state the charge with as much certainty as the known circumstances would permit. Commonwealth v. Howard, 205 Mass. 128, 145, 91 N.E. 397. It has not been shown that circumstances known to the Commonwealth would have permitted fuller and more precise descriptions than those given. We are of opinion that the indictment read with the particulars was not invalid for indefiniteness. See Commonwealth v. Howard, supra, 205 Mass. at pages 141-145, 91 N.E. at pages 399-401.

2. At the close of the evidence the defendant filed separate motions for a directed verdict of not guilty to so much of the indictment as charged (1) murder in the second degree, (3) manslaughter, and (3) assault and battery. In view of the verdict we need consider only the second motion. Inasmuch as there are numerous exceptions to rulings on evidence, some of which were erroneous, we shall consider only such evidence as was admissible.

The jury could have found these facts. On the afternoon of September 28, 1957, the defendant and his wife attended a wedding reception at a club in Nahant. There they were observed dancing together and each had several drinks of liquor. After the reception, which ended about five o'clock, the Burkes, together with a group of wedding guests, went to the home of one Finn in Saugus, where a party was held. Mrs. Burke, according to one witness, consumed four or five drinks of straight whiskey. Food was served but Mrs. Burke was not seen eating any of it. About 10 P.M. the defendant told Finn that he had to go into Boston to report for work and that he was going to leave his wife at the house of his father-in-law at 8 Nerious Avenue in Revere. The Burkes left the Finn home in his automobile shortly after the o'clock. Burke's automobile was a 1956 Pontiac coupe, two-tone gray in color. Its registration number was P76049. The front license plate was bent. Mrs. Burke was wearing a sheer red dress.

About 10:30 that night John Duplin and Patricia Mayberry were driving south on the American Legion Highway in Revere. They observed a Pontiac automobile parked at the side of the road and a woman lying in the gutter near it. Duplin parked his automobile about three feet in front of the Pontiac. As Duplin was leaving his automobile to reach the woman, he saw a man leave the driver's seat of the Pontiac, assist the woman to her feet, and return to his seat. Duplin approached the woman who was then standing on the curb with her hands up to her face. Her hair was mussed and out of place and her red dress was twisted. As Duplin came up to her she said: 'Arrest him, arrest him.' She spoke in a 'crying * * * pleading voice.' Duplin then went to the Pontiac and spoke to the man in it, who said: 'Get going, just take off, leave us alone.' Duplin then returned to his automobile, noticing, as he proceeded, that the front license plate of the Pontiac was bent. Upon instructions from Duplin Miss Mayberry obtained the license number of the Pontiac. The woman got into the Pontiac unassisted and the man and woman then drove off. Duplin and Miss Mayberry identified the man and woman as the defendant and his wife, and the Pontiac coupe as the one belonging to Burke.

Shortly before eleven o'clock that night Arnold Kline and Irma Wolinski were sitting in Kline's automobile, which was parked on Broadsound Avenue in Revere. Looking through the rear window, Miss Wolinski saw a man standing over an object in the street near the corner of Broadsound and Nerious avenues. Kline backed his automobile toward the corner while Miss Wolinski continued to observe the scene. The man began to walk away, looking over the shoulder as he did so. Kline stopped the automobile and got out. The man continued to walk away from the scene until he came to a parked Pontiac automobile, which he entered and drove away without turning on the lights. The object in the street was Mrs. Burke. She was lying unconscious, with her head toward the middle of the street and her feet about two feet from the curbstone. Her legs were close together; one of her arms was by her side and her other arm holding her handbag over her stomach. Both of her shoes were intact and in place. The hem of her dress was down over her knees and the skirt of the light coat she was wearing was spread neatly beneath her body. Her dress in the region of her stomach was torn and her midriff was bare. One of her eyes was blackened.

Kline and Miss Wolinski had been sitting in Kline's parked automobile on Broadsound Avenue since about 10:40 P.M. Between that time and the time they saw the man standing over Mrs. Burke they neither saw nor heard anything unusual with respect to the traffic. Police officers Bittner and Robson arrived at the scene shortly after 11 P.M. as Mrs. Burke was being placed in an ambulance. Officer Robson investigated for signs of a traffic accident. He found no marks on the highway, no blood, no pieces of glass, no dirt and no particles of clothing.

Kline and Miss Wolinski could not identify the defendant as the man they saw on Broadsound Avenue, but they stated that the defendant resembled him. They also stated that the Pontiac they saw at the scene resembled the one belonging to the defendant.

The defendant was a lieutenant in the Boston fire department at the time of his wife's death. On September 28, 1957, his place of duty was on Broadway. He was seen there for the first time that night around 11:20. A short time thereafter he received a telephone call and left for the Massachusetts General Hospital to which his wife had been brought. Upon arrival there he talked to a Dr. Zuidema who told him that the condition of his wife was serious and it was important, in order to determine the proper medical treatment, to know whether or not she had been hit by an automobile or assaulted. The doctor then asked him if he and his wife had quarreled that evening. The defendant replied, 'Yes,' and hung his head. One O'Brien, a police officer, came to the hospital to question the defendant and the defendant told him that he and his wife had attended a wedding reception at the Thomson Club in Nahant and that he left the club around 10:15 P.M. to drive his wife to her father's house in Revere. He stated that he made no stops between Nahant and Revere and left his wife near the corner of Broadsound and Nerious avenues at about 11 P.M. He said that she had been drinking quite a bit, but since he was in a hurry to get to work he did not take her into her father's house. The defendant stated that he was the only person who drove his automobile after six o'clock that night.

Mrs. Burke died at 2 A.M. on September 30, 1957. An autopsy, performed the same day, showed the following external signs of injury: a bruise, about four inches in diameter on the right lower quadrant of the abdomen (across this bruise there was a band or scratching one inch in length); two black eyes, accompanied by swollen eyelids; bleeding under the skin of the calves of the legs, extending from near the ankles to near the back of the knees; multiple scrapes of the knuckles of both hands; bleeding under the skin on the back of the right shoulder, extending downward into the upper part of the right arm; a bruise on the upper part of the right buttock two inches in diameter; and a bruise on the left hip one inch in diameter. The autopsy further reveald...