Com. v. Kerrigan
| Decision Date | 28 February 1963 |
| Citation | 188 N.E.2d 484,345 Mass. 508 |
| Parties | COMMONWEALTH v. John Joseph KERRIGAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William E. O'Halloran, Newtonville, for defendant.
Richard S. Kelley, Asst. Dist. Atty (Ruth I. Abrams, Asst. Dist. Atty., with him), for the Commonwealth.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, KIRK, and REARDON, JJ.
In the early morning of September 3, 1960, Lawrence W. Gorman, a Cambridge police officer, was leading two men, whom he had just arrested in the Kendall Square area, to a police call box. Suddenly the men attempted to get away and during the scuffle one of them shot Gorman in the back. He fell to the sidewalk and when brought to a hospital shortly thereafter was pronounced dead. Other police officers near by heard the shots, and came at once to the scene of the killing where they observed two men running. One of the men (Edgar W. Cook), who had been wounded in the suffle, was apprehended; the other man escaped. It is the Commonwealth's contention that the man who escaped was John J. Kerrigan. Subsequently Kerrigan (hereinafter called the defendant) was apprehended and was indicted for the murder of Officer Gorman. The defendant was found guilty of murder in the first degree and since the jury made no recommendation (see G.L. c. 265 § 2) a sentence of death was imposed, the execution of which, as required by G.L. c. 279 § 4, was stayed. 1 The case comes here on appeal, with a summary of the record, a transcript of the evidence, and an assignment of errors under G.L. c. 278 §§ 33A-33G, as amended.
There are ten assignments of error but the defendant presses only two of them, numbered 8 and 10, which relate respectively to a ruling on evidence and a portion of the charge. The defendant does not contend that the evidence was insufficient to warrant the verdict. We have, nevertheless, carefully reviewed the evidence, conscious of the grave responsibility placed upon us under G.L. c. 278 § 33E. That section 'consigns the facts as well as the law to our consideration, gives us the power and the duty exercised by a trial judge upon a motion for a new trial, and requires us to consider the whole case broadly to determine whether there was any miscarriage of justice.' Commonwealth v. Cox, 327 Mass. 609, 614, 100 N.E.2d 14, 17; Commonwealth v. Gricus, 317 Mass. 403, 406-407, 58 N.E.2d 241; Commonwealth v. Chester, 337 Mass. 702, 713, 150 N.E.2d 914.
In compliance with this mandate we turn to a discussion of the evidence. The defendant concedes that Officer Gorman was shot and killed by one of two men whom Gorman had apprehended in the Kendall Square area. Nor does he dispute that the two men had just before that attempted to break and enter Symmes Restaurant in that area. Many persons observed the two men and the officer and, though they could not positively identify the defendant, their general description of the men was consistent with a general description of the defendant and Cook. Cook, as stated, was apprehended while escaping from the scene of the crime, and, upon interrogation by the police, admitted that he was present at the shooting, but stated that the fatal shot was fired by his accomplice whom he did not identify. 2 The defendant admitted that he knew Cook and had accompanied him to Symmes Restaurant on the day before the murder. On May 14, 1961, while in the East Cambridge jail awaiting trial, Cook escaped and in doing so killed one of the guards. The defendant admitted that he aided Cook after his escape, that he brought him, with a supply of food and clothing, to the apartment of John W. Fratus at 41 Bay State Road, Boston, and that while there he conversed with Cook in the presence of Fratus. Fratus testified that he overheard a conversation between Cook and the defendant in which the defendant admitted firing the fatal shot and said that he was sorry he was so slow in getting at his gun, for if he had been quicker Cook would not have been shot.
The defendant was arrested twice in connection with the murder. The first time was on the day of the murder and after interrogation by the police he was released. The second arrest was on May 17, 1961, when he was also questioned by the police. At the trial he admitted that he had told the interrogating officers many lies concerning his relationship with Cook and Fratus. He conceded that he had lied when he told them that he had not seen Cook for at least a week prior to the murder. He admitted having lied concerning his whereabouts on the day before the crime. He also admitted that he told them many falsehoods concerning his conduct and whereabouts in May, 1961, when he was assisting Cook after his escape.
We are satisfied that on the evidence, not all of which has been recited, the jury were warranted in finding that the defendant killed Officer Gorman and was guilty of the offence charged. The defence was an alibi supported by the testimony of the defendant's sister and a friend. This defence presented a question of fact for the jury, and the jury had a right to disbelieve it.
We turn now to the assignments of error pressed by the defendant. Under his eighth assignment the defendant argues that the judge erroneously deprived him of an opportunity to explain why he had lied to the police during the above mentioned interrogations. The rulings complained of occurred in these circumstances. The defendant took the stand and in many respects his testimony differed from statements which he had given to the police during their interrogations. With respect to these inconsistencies the defendant was cross-examined at length, and he admitted that many statements which he had made to the police were false. On redirect examination the following occurred:
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