Com. v. Cooper
| Decision Date | 22 October 1914 |
| Citation | 219 Mass. 1,106 N.E. 545 |
| Parties | COMMONWEALTH v. COOPER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Oct 22, 1914.
Jas A. Stiles, Dist. Atty., of Gardner, and Edwd. T. Esty, Asst Dist. Atty., of Worcester, for the Commonwealth.
John E. Swift, of Milford, W. A. Murray, of Boston, and A. E. Livingstone, of Gardner, for defendant.
The defendant who has been convicted of the crime of murder in the first degree alleged exceptions at the trial to certain remarks of the presiding judge made while the jurors were being impaneled, and to the refusal to rule as requested, and to the exclusion of evidence. We shall consider these contentions in the order stated.
After nine jurors had been called, examined and accepted as required by R. L. c. 176, §§ 26, 28, the next juror drawn from the ballot box upon being asked by the judge, 'Are your opinions such as to prevent you from returning a verdict of guilty against the defendant for an offence punishable with death?' answered in the affirmative. A colloquy followed, the evident object of which was an effort by the judge to ascertain if the views of the juror were so firmly held that he could not vote for conviction even if satisfied upon the law and the evidence of the defendant's guilt. The juror still exhibiting by his answers that while desirous of doing his full duty, 'I would not want to send a man to the chair,' the judge said:
To this inquiry the juror replied in the negative, and although declared by the court to be indifferent he was peremptorily challenged by the commonwealth under R. L. c. 176, § 29. But before the panel had been filled the defendant excepted to the words 'unless we try capital cases our lives are not safe.' It is urged that the remark tended to prejudice the jury against him. The words, however, are not to be wrenched from the context, and no comment on the case the jury were to hear, or any reference to the defendant had been made. The judge manifestly desired to impress upon the juror the necessity of a due and proper administration of the laws, and to make clear to him that his refusal to perform the duty for which he had been summoned because performance might be disagreeable and against his conception of what the law ought to be, would prevent, if a sufficient number of the community eligible for service as jurors adhered to a like opinion, the conviction and punishment of those guilty of the crime charged. It was not an attempt to override the will of the juror or to coerce his judgment, or intended to influence in any degree the action of the jurors already selected, or the jury as finally impaneled. The discretionary powers of the court do not appear to us to have been exercised to the defendant's prejudice, and the judge moreover in his instructions left to the jury the defendant's guilt or innocence as a question of fact solely within their province. Com. v. Johnson, 188 Mass. 382, 385, 74 N.E. 939.
It was uncontroverted that the defendant killed the decedent. Indeed, as a witness in his own behalf he gave his version of the details. The evidence for the commonwealth was wholly derived from alleged statements made by him at various times to the arresting officers, and to most of the alienists who were called as witnesses. The jury could find from this testimony that on the morning of the homicide the defendant while sitting in the kitchen of his own home looked through a window and saw the decedent, of whom he had become jealous at the door of the house occupied by a woman with whom the defendant had been for a long time criminally intimate. Immediately he went upstairs and taking a revolver which he had been licensed to carry passed out of the house, going through the fields and woods to a cart road where he concealed himself, and as the decedent turned into the road the defendant fired three times, each shot striking the decedent in the back. The defendant's testimony varied the narrative only in the statement, that the decedent as he came up called him a vile name, made threats, and then advanced toward him, and when he came within a couple of feet he drew his revolver and fired once. The decedent then turned and ran, when he fired two shots, the last of which took effect. But there is no variation in the evidence that after the slaying the defendant dragged the body from the road into the bushes, and in the early morning of the next day buried it near the place where it had been left. If the jury upon all the evidence were convinced beyond a reasonable doubt that the mortal shot was fired with 'deliberately premeditated malice aforethought,' the elements of murder in the first degree as defined by R. L. c. 207, § 1, had been proved, unless the defendant...
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