Com. v. Howard

• Decision Date: 23 February 1910
• Citation: 91 N.E. 397,205 Mass. 128
• Parties: COMMONWEALTH v. HOWARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

205 Mass. 128

91 N.E. 397

COMMONWEALTH v. HOWARD.

Supreme Judicial Court of Massachusetts, Bristol.

February 23, 1910

The defendant requested the court to rule as follows:

(1) 'On the evidence the defendant is not guilty: (a) Under the second count of the indictment. (b) Under the third count of the indictment. (c) Under the fourth count of the indictment.'

(4) 'There is no evidence that Ida Howard was murdered sufficient to justify submitting that question of her murder to the jury.'

(5) 'Opinion evidence is to be received with caution, and where there is an honest difference of opinion among qualified experts the jury ought not to convict.'

(9) 'Evidence as to oral statements alleged to have been made by the defendant should be received with caution.'

(10) 'The defendant requests full instructions as to his rights: (a) In not taking the witness stand. (b) On the question of motive, and, in connection therewith, the Sturtevant letters. (c) And on the question of reasonable doubt.'

(13) 'If the jury are left in doubt as to the manner in which the deceased lost her life, they ought not to convict.'

COUNSEL

James M. Swift, Dist. Atty., F. B. Greenhalge, Asst. Atty. Gen and Frank B. Fox, Asst. Dist. Atty., for the Commonwealth.

James M. Morton, Jr., Edward T. Bannon, and J. F. Kiernan, for defendant.

OPINION

HAMMOND J.

1. As to the various motions to dismiss, to quash and to dismiss and to quash: After the plea of not guilty the defendant moved as to each count of the indictment for a bill of particulars setting forth fully and in detail the time when the place where, and the manner and means in and by which the alleged murder was committed. Such proceedings were taken upon this motion as finally resulted in an order by the court that the commonwealth file forthwith 'a statement of such particulars as shall give to the defendant reasonable knowledge of the time and place of the alleged crime, and the means and manner by and in which it is alleged to have been committed, and shall also file a statement of such particulars as may be necessary to give the defendant and the court reasonable knowledge of the nature and grounds of the crime charged, and that all such particulars shall be so filed as to the second, third and fourth counts of the indictment.'

Thereupon the district attorney filed the following paper entitled an 'Additional Bill of Particulars':

'And now comes the district attorney and in compliance with the order of the court upon defendant's motion for bill of particulars sets forth the following particulars:

'The time which the government relies on when the murder was committed is between 10 o'clock in the evening of September 19, 1908, and 12:30 o'clock in the afternoon of September 20, 1908.

'The place where it is claimed the murder was committed is in or about that part of the town of Dartmouth commonly called Padanaram. As to the means and manner whereby the murder was alleged to have been committed, the commonwealth in unable to file as to either of the counts of the indictment any further particulars which will give the defendant or the court further knowledge of the means and manner whereby the crime was committed.'

The defendant moved that the particulars be adjudged insufficient and the indictment dismissed on that account, and further as to each count filed a motion that the count be quashed and dismissed because of the failure of the commonwealth to file a proper and sufficient bill of particulars thereunder in accordance with the order of the court. The motion was denied and the defendant 'excepted to and appealed from such denial.'

The defendant further filed as to each count a motion to quash, which so far as respects the last three counts upon which alone the case was tried, set forth the following grounds: 'For that it [the count] does not in connection with the bill of particulars heretofore filed thereunder by the commonwealth plainly and concisely, or sufficiently, describe the act constituting the crime with which the defendant is thereby charged, or the time, place, manner and means by which said crime was committed, and because said third count in connection with the bill of particulars filed thereunder does not plainly and fully, substantially and formally describe the crime with which the defendant is charged.'

Upon the hearing on this motion the district attorney nol. prossed the first count and the motion was thereupon overruled and the defendant excepted to and appealed from the order overruling the motion.

It is argued by the defendant that the district attorney's statement that the commonwealth could not furnish the information was a subterfuge and evidently was so regarded by the court, for the final order was made after such a statement had been once filed by the district attorney, and that this final order amounts to an adjudication to that effect. Whether the statement of the district attorney was a subterfuge or not was a matter for the trial court, and that court may well have come to the conclusion that in view of the difficulties of the situation the statement of the district attorney as to knowledge of the precise way in which the murder was committed was true, and that it would be unjust to hamper the prosecution by compelling it to guess, and to hazard its case on the accuracy of the guess. And the fact, if it be a fact, that the court at one time in the proceedings thought that the statement of the district attorney that he could specify no further than he had done was no excuse for not specifying further, furnished no reason why the court, upon additional evidence, argument or reflection, could not modify its view and change its course accordingly. The final view of the court seems to have been either that the specifications were a sufficient compliance with its final order, or that no full compliance was possible and therefore not to be required. There is no other reasonable interpretation of the record. The motions to dismiss and 'to quash and dismiss,' even if otherwise unobjectionable, were therefore rightly overruled. The prosecution had complied with the order so far as the court finally required.

The motion to quash which is applied to each of the last three counts raises the question whether they each in connection with the particulars actually furnished are sufficient in law. These counts were drawn up apparently under Rev. Laws, c. 218, § 17 et seq. (formerly St. 1899, c. 409). The time is not stated in either count, but it is provided in section 20 of that chapter that the 'time and place of the commission of the crime need not be alleged unless it is an essential element of the crime.' Neither time nor place are an 'essential element' of the crime of murder within the meaning of this term as used in this part of the section, and hence they need not be inserted in the body of the count. The provision immediately following the language above quoted is therefore applicable, viz.: 'The allegation of time in the caption shall, unless otherwise stated, be considered as an allegation that the act was committed before the finding of the indictment, after it became a crime, and within the period of limitations.' It may be noted in passing that in the case of murder there is no limitation as to the time within which an indictment may be found. Rev. Laws, c. 218, § 52. The time given in the caption is the 'first Monday of November in the year of our Lord one thousand nine hundred and eight.' The bill of particulars specifies the time of the committal of the murder as 'between 10 o'clock in the evening of September 19, 1908, and 12:30 o'clock in the afternoon of September 20, 1908.' There is nothing to show that this specification was not as definite as the prosecution could have safely made or the defendant could have reasonably needed for the proper preparation of his defense; and it was much more definite than the defendant would have been entitled to as matter of right under the common law.

This same section (section 20) contains also the following: 'The name of the county and court in the caption shall, unless otherwise stated, be considered as an allegation that the act was committed within the territorial jurisdiction of the court.' The territorial jurisdiction of the court was the county of Bristol. The bill of particulars describes the place as 'that part of the town of Dartmouth commonly called Padanaram.' The court will take judicial notice that in Bristol county there is only one town called Dartmouth, and the evidence shows that a part of that town is called Padanaram. It is manifest that each count of the indictment taken in connection with the bill of particulars sufficiently designates the place.

As to the manner and means, each count charges an assault; the second count charges that the defendant, 'with his hands or some instrument to the jurors unknown, did choke and strangle' the victim; the third count that he 'did throw and push her into a certain river, by means of which throwing and pushing she * * * was drowned,' and the fourth count that he 'with his hands or some instrument to the jurors unknown, or by some other means to the jurors unknown, did suffocate' her. Each count charges an assault and alleges that by reason of the acts thus therein set forth the victim instantly died.

The rules of law ruquire the grand jury to state their charge with as much certainty as the circumstances of the case will permit, but if the circumstances will not permit a fuller and more precise statement a count that charges an assault upon the deceased in some way and manner and by some means instruments and weapons to the jury unknown is not invalid for indefiniteness. Com. v. Webster, 5 Cush. 295, 52 Am. Dec....