Com. v. Dorr

• Decision Date: 09 January 1914
• Citation: 216 Mass. 314,103 N.E. 902
• Parties: COMMONWEALTH v. DORR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 314

103 N.E. 902

COMMONWEALTH v. DORR.

Supreme Judicial Court of Massachusetts, Essex.

January 9, 1914

COUNSEL

Henry C. Attwill, Dist. Atty., of Lynn, for the Commonwealth.

Charles Neal Barney, Wilbert A. Bishop, and Charles J. Goldman, all of Lynn, for defendant.

OPINION

RUGG C.J.

The defendant was indicted for the murder of one George E. Marsh. The defendant admitted the killing, but claimed that it was in self-defense. It was undisputed that the deceased died instantaneously, from bullet wounds received from the defendant.

1. The defendant contends that there was not sufficient evidence on which to find a verdict of guilty of murder in the first degree, under the indictment which charged that the crime was committed at Lynn, within the county of Essex. Under this indictment it was necessary for the commonwealth to prove that the deceased was killed in Essex county, or within 100 rods of the county line, or that he died in that county. Rev Laws, c. 218,§§ 46 and 49. The facts bearing upon this point were: That the deceased was last seen alive by any witness except the defendant near the central square in Lynn, at about 4 o'clock in the afternoon of April 11th, and that the defendant in his automobile was then a few hundred feet distant and in plain sight of the deceased; that about 35 minutes after 4 of the same day a cane which might have been found to have been one used by the deceased that afternoon was discovered in the road directly opposite the spot where the body of the deceased was found; 30 or 40 feet distant was a cap which might have been found to have been worn by the defendant on the same afternoon; that the next morning, April 12th, the body of the deceased was found at the foot of an embankment in Lynn, 3,701 feet from the line separating Essex county from Suffolk county, and at about the same time a button which might have been found to have been torn from a coat worn by the defendant on the preceding afternoon was seen lying in the highway near the place where the body was found; and that some time later a pistol, identified as belonging to the defendant and carrying unexploded cartridges of the same size and type as those found in the body of the deceased, was discovered in the Saugus river, the center of which is the county line between Essex and Suffolk. The defendant testified that at his invitation the deceased entered his automobile in Lynn, but that the homicide occurred in Suffolk county more than 100 rods from the county line, and that he 'had brought the body back in the automobile and carried it about for about two hours when he placed it upon the embankment above where it was found.' There were no buildings between the spot where the body was lying on the morning of April 12th and the gatehouse at Saugus River bridge on the county line. The mere finding of the body with marks of mortal wounds upon it of such character that death must have ensued almost instantly, at a place where it must have been thrown by the hand of man, within the county of Essex, was sufficient to prove that the killing occurred in that county. Commonwealth v. Costley, 118 Mass. 1, 26. There was evidence of the other facts which have been narrated, which well might have been thought to lend confirmation to the conclusion that acts of violence occurred near the place where the body was found. The statement of the defendant to the contrary might have been disbelieved by the jury, who saw him on the witness stand and had opportunities for determining as to his truthfulness and reliability. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314, 323, 84 N.E. 129. Moreover, there was ample evidence from which the inference might have been drawn that the purpose of the defendant to commit the crime had been fixed and predetermined for a considerable period of time. If this was found to be the fact manifestly his testimony as to the way in which the killing occurred might have been discredited.

2. The medical examiner who qualified as an expert was permitted, against the exception of the defendant, to give his opinion as to the position in which the body of the deceased was at the time the bullet wounds were received, which was based upon a surface flesh wound. The ground of objection was that that subject was one not requiring special knowledge, but one which could be comprehended by persons of average intelligence without the aid of experts, and reliance is placed on Edwards v. Worcester, 172 Mass. 104, 51 N.E. 447, and Whalen v. Rosnosky, 195 Mass. 545, 81 N.E. 282, 122 Am. St. Rep. 271. But it cannot be said as matter of law that a physician, having special knowledge of anatomy and considerable experience with bullet wounds, would not be able to express an opinion upon this point helpful in enabling the jury to reach a just conclusion. Commonwealth v. Spiropoulos, 208 Mass. 71, 94 N.E. 451.

3. One motive for the commission of the crime might have been found to have been a desire on the part of the defendant to cause a financial gain to his aunt, Orpha A. Marsh, to whom he appeared to be deeply attached. As bearing upon this issue the commonwealth offered...