Com. v. Hebert

• Decision Date: 28 October 1977
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1204

368 N.E.2d 1204

373 Mass. 535

COMMONWEALTH v. Laurence R. HEBERT.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Sept. 12, 1977.

Decided Oct. 28, 1977.

Thomas G. Hoffman, Boston, for defendant.

L. Jeffrey Meehan, Sp. Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

BRAUCHER, Justice.

The defendant appealed his conviction of "attempted manslaughter," and we allowed his application for direct appellate review. We hold that there is no such crime, and reverse.

The defendant was indicted for attempted murder, rape, assault with intent to murder, and assault and battery, all arising out of an incident on February 22, 1975. After trial in May, 1975, he was acquitted of rape and assault with intent to murder and convicted of assault and battery and attempted manslaughter. He was sentenced to two and one-half years in a house of correction on the charge of assault and battery, and to two and one-half years from and after that sentence on the attempted manslaughter charge. The latter sentence was suspended, and the defendant was placed on probation for five years on condition that he take psychiatric treatment. He appealed only from the conviction of attempted manslaughter, and is now on parole from the conviction of assault and battery.

The victim testified that the defendant had sexual intercourse with her without her consent. Afterward, she said, he strangled her until she passed out; when she revived he threatened to kill her. He also struck her. The defendant testified that he had consensual intercourse with the victim, that in frustration with himself he struck her, and that she did not answer when he asked whether she was all right. He denied the strangling. There was no evidence of provocation.

On the indictment for assault with intent to murder, the judge instructed the jury as to murder, voluntary manslaughter, and involuntary manslaughter, and instructed them that they could find the defendant guilty of assault with intent to commit murder, or guilty of assault with intent to commit manslaughter, or not guilty. He then instructed them as to attempted murder: "if a person is engaged in the accomplishment of an unlawful purpose and has gone far enough in accomplishing the purpose so that it is reasonably probable the purpose would have been accomplished if it had not been frustrated by the intervention of another or by other causes, the evidence is sufficient to show an attempt to commit the crime charged." They would have to determine whether it was attempted murder; if not, "then would it be manslaughter?" Finally, they could find the defendant not guilty. The defendant took exception "to all of that part of the charge which referred to the lesser included offense of manslaughter."

1. Attempted involuntary manslaughter. Attempted murder is punishable under G.L. c. 265, § 16, if committed by poisoning, drowning or strangling or by means not constituting an assault with intent to commit murder; any attempt to commit a crime is punishable under G.L. c. 274, § 6. The Commonwealth concedes that there is no such crime as attempted involuntary manslaughter. An attempt to commit a crime necessarily involves an intent to commit that crime. Commonwealth v. McLaughlin, 105 Mass. 460, 463 (1870). See Commonwealth v. Gosselin, 365 Mass. 116, 121, 309 N.E.2d 884 (1974). Involuntary manslaughter is homicide unintentionally caused. Commonwealth v. McCauley, 355 Mass. 554, 560, 246 N.E.2d 425 (1969), and cases cited. Hence an attempt to commit involuntary manslaughter is logically impossible. People v. Genes, 58 Mich.App. 108, 110, 227 N.W.2d 241 (1975). People v. Foster, 19 N.Y.2d 150, 152-153, 278 N.Y.S.2d 603, 605, 225 N.E.2d 200, 201 (1967) (statute defined manslaughter as homicide "without a design to effect death") Gonzales v. State, 532 S.W.2d 343, 345 (Tex.Cr.App.1976). See Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy, 61 Colum.L.Rev. 571, 575-577 (1961).

2. Attempted voluntary manslaughter. We have not had occasion to decide whether there is a crime of attempted voluntary manslaughter. Authority elsewhere is sparse and inconclusive. Compare People v. Weeks, 86 Ill.App.2d 480, 485, 230 N.E.2d 12 (1967) (no such crime), with State v. Harper, 205 La. 228, 230-231, 17 So.2d 260 (1944) (affirming conviction), and People v. Genes, 58 Mich.App. 108, 110, 227 N.W.2d 241 (1975) (dictum). See Smith, Two Problems in Criminal Attempts, 70 Harv.L.Rev. 422, 434 (1957); R. Perkins, Criminal Law 575 n. 11 (2d ed. 1969).

We think an attempt to commit voluntary manslaughter is logically possible. An intent to kill "may exist when one intends only such killing as amounts to manslaughter." Commonwealth v. Demboski, 283 Mass. 315, 322, 186 N.E. 589, 591 (1933). In the Demboski case we held that a defendant indicted for assault with intent to murder under G.L. c. 265, § 15, could be convicted of the lesser included crime of assault with intent to kill under G.L. c. 265, § 29. We treated the latter crime as assault with intent to commit manslaughter. We stand by that decision, which has been applied more recently. Commonwealth v. Martin, --- Mass. --- n.1 ^a, 341 N.E.2d 885 (1976). Commonwealth v. Jervis, --- Mass. --- ^b, 335 N.E.2d 356 (1975). We add that the crime is more likely to be understood by a jury if it is referred to as "assault with intent to kill" rather than as "assault with intent to commit manslaughter."

Notwithstanding the logical possibility, we do not think that recognition of a crime of attempted voluntary manslaughter would serve any useful purpose. We have been unable to hypothesize a case which might constitute attempted voluntary manslaughter which would not also constitute assault with intent to kill. See Commonwealth v. Slaney, 345 Mass. 135, 138, 185 N.E.2d 919 (1962) (attempted battery is assault); Vogel v. State, 124 Fla. 409, 420, 168 So. 539 (1936) (dissenting opinion). The maximum penalty for such an assault under G.L. c. 265, § 29, is greater than the maximum penalty for attempted manslaughter under G.L. c. 274, § 6, Second.

Moreover, as the present case illustrates, the concept of attempted voluntary manslaughter is likely to confuse counsel, judge and jury. Manslaughter may comprehend a variety of cases where intent to kill is not essential: homicide in the commission of certain unlawful acts; cases of wanton or reckless conduct; cases where unreasonable force is used in self-defense; and cases of "sudden transport of passion or heat of blood, upon a reasonable provocation and without malice," where the intent may be to do grievous bodily harm rather than to kill. See Commonwealth v. Hicks, 356 Mass. 442, 444-445, 252 N.E.2d 880, 882 (1969); Commonwealth v. Jones, 366 Mass. 805, 807-809, 323 N.E.2d 726 (1975); Commonwealth v. Kendrick, 351 Mass. 203, 209-213, 218 N.E.2d 408 (1966); R. Perkins, Criminal Law 35-36, 51-52 (2d ed. 1969). There may be "malice aforethought," an element of murder, even though there is no intent to kill, or there may be an intent to kill even though there is no "malice aforethought." Attempted voluntary manslaughter would involve an unlawful intent to kill in the absence of malice. At least one court has thought that an attempt must involve some calculation or deliberation inconsistent with passion and provocation. People v. Weeks, 86 Ill.App.2d 480, 485, 230 N.E.2d 12 (1967). There is force in that thought; in any event, there is no doubt that the distinctions are finely drawn.

The present case nicely illustrates the possibility of confusion. The judge's charge clearly permitted the jury to find the defendant guilty of assault with intent to commit involuntary manslaughter; arguably it also permitted them to find him guilty of attempted involuntary manslaughter. There was no such evidence of provocation as to require any reference to voluntary manslaughter. Cf. Commonwealth v. Rembiszewski, 363 Mass. 311, 321, 293 N.E.2d 919 (1973). Counsel for the defendant objected to reference to manslaughter, but did not call attention either to the problem of provocation or to the problem of involuntary manslaughter. Finally, the jury found the defendant not guilty of assault with intent to commit manslaughter but guilty of attempted manslaughter. This strongly suggests that the defendant was found guilty of attempted involuntary manslaughter.

The problem of confusion could be reduced by proper instructions to the jury, but we doubt that it could be eliminated. In view of the duplication which would arise if we recognized as crimes both assault with intent to kill under G.L. c. 265, § 29, and attempted manslaughter under G.L. c. 274, § 6, therefore, we hold that the latter statute is not to be read as extending to manslaughter. Our restricted reading is consistent in policy with the exception made in G.L. c. 265, § 16, for attempted murder which constitutes assault with intent to murder.

We recognize that the result of our decision will be to relieve the defendant of probation and thus of the obligation to take psychiatric treatment. This is doubtless unfortunate even from his point of view, but we must apply the law as we find it.

Judgment reversed. Verdict set aside. Judgment for the defendant.

QUIRICO, Justice (concurring in the result).

The defendant, Laurence R. Hebert, was indicted for attempted murder, rape, assault with intent to murder, and assault and battery. A jury convicted him of attempted manslaughter and assault and battery. He was acquitted on the other charges. He has appealed only his conviction for attempted manslaughter. By its opinion in this case the court has reversed the conviction for the basic reason that it does not believe that there is such a crime as an attempt to commit manslaughter under our law. While I concur in the reversal, I would...