Com. v. Gilbert

• Decision Date: 09 December 1895
• Citation: 42 N.E. 336,165 Mass. 45
• Parties: COMMONWEALTH v. GILBERT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 45

42 N.E. 336

COMMONWEALTH v. GILBERT.

Supreme Judicial Court of Massachusetts, Suffolk.

December 9, 1895

At the trial of said cause in the superior court the government called as a witness Alice Sterling, the mother of Alice M. Sterling, named in the indictment, who at the close of her direct examination, while upon the stand as a witness at the trial of said case against the defendant, did in the presence and hearing of the jury impaneled and sitting to try said cause, loudly and in a very excited manner, speak and utter these words of and concerning the said defendant "Only that man!" or "Oh, that man! He has killed my Mamie, my darling! He has murdered her, murdered her!"--and did also, at the close of her redirect examination, while upon the stand as a witness, in the presence and hearing of said jury, further say, in a loud and excited manner, of and concerning the defendant: "That is the murderer of my little Mamie! The murderer of her! The murderer!" This outbreak was not in response to any question, and was stopped as soon as was practicable. In consequence of these statements and exclamations of said Alice Sterling, the defendant, before the introduction of any evidence on his part as to the merits of the case, moved the court, in writing, to take said case from the jury, for the reasons therein set forth. The presiding justices overruled said motion, and the defendant excepted thereto, and asks that said exception be allowed. The defendant introduced evidence tending to show that Charles Dunbrack, an uncle of the defendant, had been insane for the past 25 years,--a large part of the time, violently so,--and had been confined in an asylum for the insane; that Mary Bruce, an aunt, had been insane occasionally during the past 30 years; that said Charles and Mary were his mother's brother and sister; further, that two children of John Dunbrack, a cousin of his mother's, had been idiotic; and introduced evidence tending to show that George Gilbert, the defendant's father, drank to excess before his marriage and was an habitual drunkard when the defendant was 2 years old. The government introduced no evidence tending to control any part of the foregoing testimony. There was also evidence coming from witnesses called by the government, and others who testified, tending to show that the defendant had often been seen slightly under the influence of liquor, and had at times drunk so much as to become intoxicated, and that on the day of the alleged homicide he had been drinking to such an extent as to attract observation. Upon this and the foregoing evidence, the defendant contended that he had contracted the habit of drinking to a degree which had created and amounted to an uncontrollable appetite for intoxicating liquors, which position the commonwealth controverted. There was evidence tending to support the allegations of the indictment, and to show the attendant circumstances. On this evidence the prosecution contended the defendant had committed the murder charged, and that it was committed with deliberately premeditated malice aforethought, and to the commission of an assault upon the deceased with intent to commit rape upon her, and with extreme atrocity or cruelty. The defendant presented, among others, the following prayers for instructions: "(2) If the jury are satisfied that the defendant's father was a man of intemperate habits, as testified to by the witnesses in this case, and that the defendant inherited a tendency to drink, which was likely to develop an uncontrollable appetite for intoxicating liquors and had contracted such appetite, that then such appetite is a disease, and intoxicating liquors taken and used to satisfy such an appetite are not taken and used voluntarily; and, if the jury are satisfied that the offense charged in this indictment was committed while under the influence of liquors so taken, that then the intent necessary to constitute murder is wanting, and the defendant cannot be found guilty as charged in the indictment." "(7) The words 'extreme atrocity and cruelty,' used in the statute, do not mean mere violence, but involve the knowledge of the character of the act in the mind of the agent."

COUNSEL

A.M. Knowlton, Atty. Gen., and G.C. Travis, Asst. Atty. Gen., for the Commonwealth.

W.W. Doherty and J.E. Leach, for defendant.

OPINION

ALLEN J.

1. The government was in no way responsible for the outbreak of the witness. It was an incident which could not be guarded against in advance. The witness was called because her testimony was deemed to be important, in the interest of justice. Such an outbreak might occur from an hysterical or highly-emotional person who was not a witness. The jurors are supposed to be men of sufficient character and sense to enable them to disregard such an incident. To assume the contrary would be to strike a blow at the...