Com. v. Chance

• Decision Date: 07 September 1899
• Citation: 174 Mass. 245,54 N.E. 551
• Parties: COMMONWEALTH v. CHANCE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 245

54 N.E. 551

COMMONWEALTH v. CHANCE.

Supreme Judicial Court of Massachusetts, Suffolk.

September 7, 1899

COUNSEL

H.M. Knowlton and M.J. Sughrue, for plaintiff.

H.P Harriman and G.P. Wardner, for defendant.

OPINION

HOLMES C.J.

1. If the challenge to the array was in due form, and if an exception was taken to the decision overruling it, still fairly construed, it does not allege, on independent grounds that the law as to posting the jury list in the city of Boston was not complied with, but, rather, that the records set forth show that it was not, or do not show that it was. St.1897, c. 515, § 2. We do not mean to give any countenance to the objection, but, for the purposes of decision, it is enough to say that, if it were well taken, it does not affect the whole panel, and therefore is not a ground of challenge to the array. Com. v. Walsh, 124 Mass. 32, 38.

2. The second exception is to the refusal of the court to order a view of the place where the murder was committed, and of the route along which the defendant Chance was alleged to have fled. It was expected that such a view would strengthen the argument for Chance that he was unable to run as the murderer ran. On the other hand the view was objected to by the defendant Hagan. The whole matter rested in the discretion of the court. The language of the chapter as to criminal trials is that the court "may order a view," etc. Pub.St. c. 214, § 11. In the chapter concerning juries the language is, "The jury *** may be taken to view the premises *** when it appears to the court that such view is necessary to a just decision." Id. c. 170, § 43. The word "may" implies a discretion. Without such governance, views might become rather an obstruction than an aid to justice; and we believe that, when extended from their ancient use in real actions, they always have been held to be subject to the discretion of the court, both in this state and in England. Com. v. Webster, 5 Cush. 295, 298, 299; Reg. v. Martin, L.R. 1 Crown Cas. 378, 381; Anon., 6 Mod. 211; Id., 1 Barnard, 144; Attorney General v. Green, 1 Price, 130; 1 Burrows, 252, 254, 255; Anon., 2 Chit. 422. This being so, although the view might have been evidence if it had been taken, photographs and plans found to be instructive properly were admitted.

3. A woman with whom Chance lived was called by the government, and gave testimony tending to prove innocence by way of alibi, and of his appearance on coming home after the hour of the murder. The government then was allowed to ask her whether she had not testified before the grand jury that Chance returned in about half an hour after his going out, which was fixed by her at about the hour of the murder, and that he was out of breath, as though he had been running, white as a sheet, and nervous. This was admitted to lay a foundation for contradiction, under Pub.St. c. 169, § 22. It is objected that it violated the secrecy of proceedings before the grand jury. But this objection is disposed of by Com. v. Mead, 12 Gray, 167; Insurance Co. v. Healey, 151 Mass. 537, 538, 24 N.E. 913.

4. The defendant was arrested on April 20, 1898. On that day he had a conversation with an officer in which he gave a certain account of where he was on the night of the murder, and admitted that he owned a coat found in the alleged path of the running murderer, and that he had it about the hour of the murder. On the morning of the next day the defendant was asked, in the presence of several officers, concerning his whereabouts, and gave a somewhat different account, and said that he went to bed about half past 8 or 9, whereas the testimony of the woman with whom he lived was that he was away from home after 8 for a greater or less time. On the afternoon of that day the defendant was arraigned, and in the evening the same officers, with one exception, examined him at length, with a stenographer. In the course of this last examination there was evidence, more or less contradicted, of certain words being used by an officer, which the court found or ruled to be such an inducement as to render the portion of the examination which followed inadmissible. The court thereupon found or ruled that the previous part of the examination was so connected with the later part that none could be put in. The defendant then asked the court to go still further, and to rule that the two previous examinations were so connected with the last that they also should be excluded, but, upon the court refusing so to rule, preferred to have the whole of the third examination go in, saving his exception to the refusal to exclude all three.

We do not see what we can say, by way of argument, to make the independence of the three conversations plainer than it is made by a simple statement of the facts. They were separated in time, and each was complete in itself, and in no way referred forward to things still to be said, or depended upon them, for explanation or qualification of what had been said already. The fact that they all related to the same subjects, as they naturally would, did not make them one. The court went to the extreme in its anxiety to protect the defendant's rights. If it had gone further, it clearly would have been wrong. See Com. v. Keyes, 11 Gray, 323, 324; Adams v. Eames, 107 Mass. 275; Com. v. Campbell, 155 Mass. 537, 30 N.E. 72; Com. v. Russell, 160 Mass. 8, 10, 35 N.E. 84.

It is argued further that the conversations were not voluntary, in view of the defendant's confinement, recent recovery from a fit of delirium tremens, etc. We have no disposition to make the rule of exclusion stricter than it is under our decisions. It goes to the verge of good sense, at least. Reg. v. Baldry, 2 Denison, Crown Cas. 430, 445, 446; Reg. v. Reeve, 12 Cox.Cr.Cas. 179, 180; Hopt v. Utah, 110 U.S. 574, 584, 4 Sup.Ct. 202. The finding that the conversations were voluntary was fully warranted. See Com. v. Bond, 170 Mass. 41, 48 N.E. 756.

Finally it is slightly pressed that the conversations had nothing in them tending to criminate the defendant, while it is insisted that he suffered by their being admitted. We believe that in stating the first two we have indicated sufficiently their relevancy.

5. It being important to prove whether the defendant shaved off his mustache before or after the murder, a witness was permitted to testify, through an interpreter, that he did not remember the time, but that he had a sign,--that the night before there was a fight at Kasanof's store, and the following morning the mustache was taken off. This was excepted to. Another witness then fixed the date of the fight at Kasanof's store as the date of the murder. The evidence was admissible, on elementary principles. McDonald v. Savoy, 110 Mass. 49, 50.

6. The government put in evidence that after the murder the defendant Chance was seen running rapidly from the place. A part of the evidence for the defense was that Chance, by reason of injuries and illness, was unable to run fast. The government knew that this defense would be set up, and experts on both sides had examined Chance beforehand. The defense was indicated further by the cross-examination of the witnesses who said that they saw Chance run. Under these circumstances, the defendant contended that the government was bound to put in all its evidence as to Chance's ability to run, as part of its case in chief; but the court ruled, subject to exception, that such evidence would be proper in rebuttal, and the government evidence was put in at that stage. The ruling was right. No doubt, Chance's ability to run went to the identity of the man seen running; but there are many possible questions on the elements of the case which the government must prove, concerning which it may rest on general presumptions until specific evidence is introduced tending to show that this is an exceptional case. It must show that the defendant did not do the act by reason of insanity, but it is not obliged to call experts in the first instance to show that the man was sane. Trials would be made even more unnecessarily long than they are, if all possible defenses of this sort had to be met in advance, without waiting to see whether they are set up. Most men can run. That was enough, until the jury had some ground for believing...