Com. v. Lundin

• Decision Date: 06 December 1950
• Parties: COMMONWEALTH v. LUNDIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 661

95 N.E.2d 661

326 Mass. 551

COMMONWEALTH v. LUNDIN.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Oct. 2, 1950.

Decided Dec. 6, 1950.

B. W. Flynn, Asst. Dist. Atty., Brockton, for the Commonwealth.

G. E. Shulman, Brockton, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

WILLIAMS, Justice.

The defendant was found guilty by a jury of murder in the first degree of one Muriel Beal. The case is before us after sentence on the defendant's appeal accompanied by an assignment of errors, a summary of the record, and a transcript of the evidence. G.L.(Ter.Ed.), c. 278, §§ 33A-33G, as amended by St.1939, c. 341.

There was evidence that Muriel Beal, a young woman twenty-six years of age, was shot by the defendant on Main Street, one of the principal business streets of Brockton, at about 12:15 P.M. on Monday, November 21, 1949. Miss Beal was standing on the sidewalk looking at the bulletin board in the window of the Brockton Enterprise-Times, a local newspaper, when the defendant approached from behind and shot at her three times. The weapon used was a thirty-eight calibre Colt revolver. The first bullet struck the door of the newspaper building and dropped on the sidewalk. The second bullet, fired with the revolver held against or close to the back of Miss Beal, passed through her lung and heart, causing almost instant death. The third bullet, fired as the victim lay on the sidewalk, shattered a bone in her right leg. After the shooting, the defendant walked down an alleyway nearby, threatened several persons in the vicinity with his revolver, and then attempted to commit suicide by shooting himself in the chest. The shot resulted only in a superficial wound but caused a considerable loss of blood. The defendant then threw away his revolver and was immediately arrested by the police. He was taken in a police automobile to the Brockton Hospital and there given treatment for shock, a transfusion of blood plasma, and a saline intravenous injection. While in the automobile, he orally admitted the shooting to the police and, while in the hospital, made an additional statement of like nature. The statement made in the hospital was written out by a police officer in the defendant's presence, was read to him, and after being typewritten, within a short time was presented to the defendant for his signature. He was receiving a blood transfusion in his right arm at the time and therefore signed the written statement by making a cross with his left hand.

The defendant does not deny the facts of the shooting. His defence is insanity. It is his contention that, from a time shortly before the shooting when he saw Miss Beal walking on Main Street, he has no recollection of his subsequent acts. He testified at the trial that at one time he had been engaged to marry Miss Beal and that the engagement had been broken by her about a year before. Since then he had been mentally upset and had contemplated suicide. A few weeks before November 21 he purchased a sheath knife with the thought of using it on himself in the presence of Miss Beal. He bought the revolver on the Friday before the shooting and carried it on his person on the morning of November 21. He saw Miss Beal on Main Street and crossed the street to the side on which she was walking toward the newspaper building. From that time he did not remember what happened until he found himself in the hospital on the following Tuesday morning.

There was evidence of statements made by him before the shooting to the effect that on November 5 while driving a truck on Main Street he saw Miss Beal crossing the street in front of him and that he had the 'urge' to run her down but that he restrained himself because the truck which he was driving did not belong to him. He also said that on the same evening, being armed with the sheath knife, he went to the vicinity of Miss Beal's home in Whitman and waited outside of the house for about an hour and a half with the intention to use the knife on her.

A motion for a new trial alleging that the verdict was against the evidence, the weight of the evidence and the law and that the defendant was in the possession of newly discovered evidence was denied by the trial judge.

The defendant has filed seventeen assignments of error. Assignment 1 is to the denial of his motion filed before the trial that the district attorney 'be ordered to furnish to counsel for the defendant a full and complete copy, memoranda, notes, or any other written or oral evidence of any confession made by the defendant to the district attorney, any representative of the district attorney, or any police officer, or any other person or persons to whom the defendant is alleged to have made a confession either orally or written.' It is settled that the defendant was not entitled to this evidence. Commonwealth v. Giacomazza, 311 Mass. 456, 462, 42 N.E.2d 506. Commonwealth v. Galvin, 323 Mass. 205, 211, 80 N.E.2d 825.

Assignments 2 to 6, inclusive, relate to the admission of the alleged oral and written confessions made by the defendant to the police while in the automobile immediately following the shooting and later on the same day while in the hospital. It is contended that these confessions were not voluntary because made while the defendant was in a state of shock due to his wound and loss of blood and that they were not admissible because he was not warned that he was not obliged to talk and that what he said might be used against him. No medical evidence was offered as to the physical condition of the defendant at the time of these confessions. It is settled that no warning to a defendant is necessary although, as said in Commonwealth v. Szczepanek, 235 Mass. 411, 414, 126 N.E. 847, if such warning or caution is given, it tends to support a contention that the confession thereafter made is voluntary. The issue as to whether the confessions in question were voluntary was one of fact. The judge heard the evidence as to the confessions in the absence of the jury, found them to have been made voluntarily, and later submitted them for the consideration of the jury under careful and appropriate instructions. Commonwealth v. Dascalakis, 243 Mass. 519, 522, 137 N.E. 879, 38 A.L.R. 113; Commonwealth v. Buck, 285 Mass. 41, 47, 188 N.E. 613; Commonwealth v. Galvin, 323 Mass. 205, 215, 80 N.E.2d 825. The jury must be taken to have followed those instructions and the evidence would warrant them in finding 'that the physical and mental condition of [the defendant] at the time in question was not such as to deprive him of the faculty of consciousness of the physical acts performed by him, of the power to retain them in his memory, or of the capacity to state them with reasonable accuracy.' Commonwealth v. Sheppard, 313 Mass. 590, 604-605, 48 N.E.2d 630, 640. See also People v. Miller, 135 Cal. 69, 67 P. 12; Green v. State, 96 Md. 384, 54 A. 104; State v. Hormer, 139 N.C. 603, 52 S.E. 136. There was no error.

Assignment 7 is to the refusal of the judge to strike out the answer of a lieutenant of the Brockton police who testified that a search of the records of the department disclosed that no license to carry firearms had been issued to the defendant. The fact that the defendant had no right to carry the revolver when he purchased it had some tendency to show that he premeditated its unlawful use. The judge instructed the jury that the commission of the offence of carrying the revolver was not to be considered by them as evidence of the commission of the crime for which the defendant was being tried. There was no error. See Commonwealth v. Simpson, 300 Mass. 45, 56, 13 N.E.2d 939, and cases cited.

Assignments 8 and 9 have not been argued and are treated as waived.

Assignment 10 relates to the refusal of the judge to...