Com. v. Chester

• Decision Date: 10 June 1958
• Citation: 150 N.E.2d 914,337 Mass. 702
• Parties: COMMONWEALTH v. Jack CHESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 914

150 N.E.2d 914

337 Mass. 702

COMMONWEALTH v. Jack CHESTER.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued March 3, 1958.

Decided June 10, 1958.

Louis Goldstein, Roxbury (Austin Horowitz, Boston, with him) for defendant.

Myron N. Lane, Dist. Atty., Wollaston (Edward H. Libertine, Asst. Dist. Atty., Quincy, with him) for Commonwealth.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN, and WHITTEMORE, JJ.

SPALDING, Justice.

Early in the afternoon of April 20, 1957, the defendant shot and killed Beatrice R. Fishman at her home in Brookline. Under an indictment charging murder, the defendant was found guilty of murder in the first degree. Since the jury made no recommendation (see G.L. c. 265, § 2, as amended through St.1951, c. 203) a sentence of death was imposed, and the execution of the sentence was stayed, as required by G.L. c. 279, § 4, as amended through St.1955 c. 770, § 92. The case comes here on two appeals, with a summary of the record, a transcript of the evidence, and an assignment of errors under G.L. c. 278, §§ 33A-33G, as amended.

No exceptions were taken during the trial. Within a few days after the verdict the defendant filed a motion for a new trial. Before this motion was heard, the defendant seasonably filed a claim of appeal (hereinafter called the first appeal) under § 33B, 'being aggrieved by the verdict which was against the weight of the evidence and the law' and which if it was allowed to stand 'would work a miscarriage of justice.' The motion for a new trial was denied after hearing and the defendant duly excepted and filed his second claim of appeal, assigning as error the denial of the motion. Thereafter, upon the Commonwealth's motion, the defendant's first appeal was dismissed, presumably on the ground that since there were no exceptions taken at the trial there was no basis for an appeal. Thereupon the defendant filed his third claim of appeal, alleging that he was aggrieved by the dismissal of his first appeal.

The question whether the first appeal was rightly dismissed may be summarily dealt with. In general it may be said that under the procedure prescribed by §§ 33A-33G 'An exception not included in the assignment of errors and an assignment of errors not based upon an exception' bring nothing to this court to review. Commonwealth v. McDonald, 264 Mass. 324, 336, 162 N.E. 401, 402; Commonwealth v. Polian, 288 Mass. 494, 496-497, 193 N.E. 68, 96 A.L.R. 615; Commonwealth v. Taylor, 319 Mass. 631, 633, 67 N.E.2d 237. But compare Commonwealth v. Conroy, 333 Mass. 751, 757, 133 N.E.2d 246, 250, where it was stated that 'in appropriate instances this court has and will exercise the power to set aside a verdict or finding in order to prevent a miscarriage of justice when a decisive matter has not been raised at the trial.' Whether the broad review which, under § 33E, this Court is required to exercise in a capital case can be had upon an appeal, such as the first appeal here, where there are no exceptions and no assignment of errors, is a question that we need not decide. See Commonwealth v. Gricus, 317 Mass. 403, 58 N.E.2d 241. Compare Commonwealth v. MacGregor, 319 Mass, 462, 66 N.E.2d 356. It was conceded by the defendant's counsel at the arguments that the appeal from the denial of the motion for a new trial, which is accompanied by an assignment of error based on an exception, affords the same opportunity for review under § 33E as would be open under the first appeal if it were properly here. We agree.

We turn now to the appeal from the denial of the motion for a new trial. Various grounds were set forth in the motion, but counsel for the defendant in his brief states that the 'only issue in this case is the criminal responsibility of the defendant.' For reasons which will appear hereinafter in our consideration of the case under § 33E, we are of opinion that the judge did not err in denying the motion for a new trial.

Section 33E provides that the entry of a capital case in the Supreme Judicial Court 'shall transfer to that court the whole case for its consideration of the law and the evidence' and that 'the court may order a new trial 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.' The scope of the review under this provision has been discussed in Commonwealth v. Gricus, 317 Mass. 403, 406-407, 58 N.E.2d 241, 243, and Commonwealth v. Cox, 327 Mass. 609, 614-615, 100 N.E.2d 14.

We proceed to a consideration of the case in the light of our power and duty under § 33E.

That the defendant shot and killed Beatrice R. Fishman in the early afternoon of April 20 is not in dispute. The defendant shortly after the shooting gave himself up to the police and told them what he had done. At the trial he took the stand and testified that he had shot Miss Fishman. There was evidence that Miss Fishman's mother saw the defendant with a pistol in his hand standing at the front door of her home immediately prior to the shooting; that she heard a noise and then saw her daughter fall to the floor; and that she opened the door and observed the defendant running toward his automobile. A pistol was found in the defendant's automobile by the police in a place where the defendant said it would be, and the bullets found in Miss Fishman's body and at the scene of the crime came from that pistol.

From evidence introduced at the trial, the following could have been found: The defendant first met Miss Fishman about six years prior to her death. She was then about twelve years of age and he was about sixteen. At some time prior to May, 1952, when the defendant entered the Air Force, he and Miss Fishman started 'to go around together,' and in December, 1954, while he was still in the service, they became engaged. He sent her an allotment from his pay to be put into a joint bank account. Excerpts from her letters indicate that they had great affection for each other.

On his return to this country from Japan, the defendant obtained a job in an aircraft factory in California. In the latter part of June, 1956, he flew to Boston and was met at the airport by Miss Fishman and her parents. He told them that he wanted to marry Miss Fishman as quickly as possible and then go to his job in California. This plan was agreed upon and arrangements were made for the wedding. Shortly bebore the time set for the wedding Miss Fishman was injured in an automobile accident while riding with the defendant, and was hospitalized for two weeks. The wedding was postponed and the defendant, unable to find work in the east, returned to California in the latter part of July.

There were further postponements of the wedding for reasons that need not concern us, and in October the defendant became 'very perturbed' and decided that he and Miss Fishman 'were through.' He told her she could keep all that he had given her except the wedding ring. For one reason or another she never returned the ring and it was in her possession at her death.

Between October and the following April, the defendant was very unhappy. He went with other girls, but none of them could replace Miss Fishman. He tried to bring about a reconciliation, but Miss Fishman seemed indifferent. She still failed to return the wedding ring, however. He started to drink heavily and use marijuana. Sometime before April, he bought a pistol. His exact intention in doing so was not clear, but he had many thoughts on the subject. One was to kill himself; another was to threaten Miss Fishman with it if he could not get the ring back; still another was to kill her if he could find no solution to his anxiety.

The defendant decided to spend the week end of April 20 and 21, 1957, in Boston and purchased a round trip plane ticket. When packing his bag for the trip he put in the pistol. When he arrived in Boston on the evening of April 19 he went directly to the Fishman home in Brookline; he was told by her parents that she was 'out on a date.' The defendant stayed for some time talking with Mr. and Mrs. Fishman and when he stated that he wanted to stay until Miss Fishman returned they told him to come back the next day. He then left.

On the following day the defendant called at the Fishman home and talked with Miss Fishman and her mother. Miss Fishman told him that he had been away so long 'she didn't know * * * [him] any more,' but if he returned to Boston to live they 'could get reacquainted.' The defendant asked Miss Fishman to return the ring and she told him it was in a safe deposit vault, and he could have it Monday. There was further conversation with her, during which he became very upset, and he felt that he had become entangled in an 'utterly hopeless * * * and impossible situation' and that he wanted to kill Miss Fishman. But he 'fought his emotion down,' kissed her good-bye and walked out of the house.

The defendant, according to his testimony at the trial, went to a bar and had 'two shots of Bourbon.' According to his statement given to the police, he smoked two marijuana cigarettes but they made him only slightly 'high' and had no effect on his behavior; he knew what he was doing. In about half an hour he returned to the Fishman house in an angry mood. He 'figured it out * * * [that he] couldn't live with her and * * * [he] couldn't live without her' and it did not make any difference. His intent was to '[blow] her * * * head off.' He went to the front door with his pistol in his pocket and rang the doorbell. As Miss Fishman opened the door he had the pistol in his hand. Seeing it, she hesitated and then closed the door. Thereupon the defendant started pulling the trigger and kept on pulling it until he had fired nine shots through the door. Three of these entered the body of Miss Fishman, causing wounds from which she died within an hour. Shortly thereafter the defendant asked a policeman to arrest...