Com. v. Snell

• Decision Date: 07 September 1905
• Citation: 75 N.E. 75,189 Mass. 12
• Parties: COMMONWEALTH v. SNELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 12

75 N.E. 75

COMMONWEALTH v. SNELL.

Supreme Judicial Court of Massachusetts, Bristol.

September 7, 1905

COUNSEL

Herbt. Parker, Atty. Gen., Jas. M. Swift, Dist. Atty., and Fred T Field, for the Commonwealth.

Hugo A Dubuque and Jas. P. Doran, for defendant.

OPINION

KNOWLTON, C.J.

The first question in this case arises upon the defendant's motion to quash the indictment. The indictment is in three counts, and the motion is general, applying to the indictment as a whole, and not asking for a ruling in regard to any particular count. If, therefore, any count is good, the motion was rightly overruled. Com. v. Hawkins, 3 Gray, 463; Com. v. Pratt, 137 Mass. 98.

The defendant's first objection, which applies to all the counts alike, is that the indictment contains no statement of the time and place of the commission of the crime. The answer to this is found in the statute, which was intended to simplify the forms and rules of criminal pleading. Rev. Laws c. 218, §§ 17-21. These sections, which were first enacted in St. 1899, c. 409, are as follows:

'Sec 17. An indictment shall contain, first, the caption, which shall consist of the name of the commonwealth, county and court in which the indictment is presented, and the time of the sitting of the court. One caption will be sufficient although the indictment contains more than one count. Second, a plain and concise description of the act which constitutes the crime, or the appropriate legal term descriptive of such act, without a detailed description thereof. The words used in a statute to define a crime, or other words conveying the same meaning, may be used.

'Sec. 18. The circumstances of the act may be stated, according to their legal effect, without a full description thereof, * * *

'Sec. 20. The time and place of the commission of the crime need not be alleged, unless it is an essential element of the crime. 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. 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. All allegations of the indictment shall, unless otherwise stated, be considered to refer to the same time and place.

'Sec. 21. The means by which a crime is committed need not be alleged in the indictment, unless they are an essential element of the crime.'

Additional provisions of a similar character in regard to particular subjects are found in the sections immediately following.

In this indictment the caption conforms to the statute, giving the name of the commonwealth, county, and court in which the indictment was presented, and the time of the sitting of the court. This, when read in connection with the statute, is an allegation that the act was committed before the finding of the indictment and after it became a crime. In reference to the crime of murder, there is no period of limitations. Rev. Laws, c. 218, § 52. It is also an allegation that the act was committed within the territorial jurisdiction of the court. See Com. v. Rogers, 181 Mass. 184-191, 63 N.E. 421. These facts in regard to the time and place are all that need be proved at common law when the averments are made particularly. Except so far as necessary to show jurisdiction, such averments never need be proved. Com. v. Tolliver, 8 Gray, 386, 69 Am. Dec. 252; Com. v. Lavery, 101 Mass. 207; Com. v. Robertson, 162 Mass. 90, 38 N.E. 25; Led better v. United States, 170 U.S. 606-613, 18 S.Ct. 774, 42 L.Ed. 1162. In all other particulars the second and third counts are good at common law. The allegations as to the means used and the location of the wound are sufficient. Com. v. McAfee, 108 Mass. 458, 11 Am. Rep. 383; Com. v. Robertson, ubi supra; Com. v. Coy, 157 Mass. 200, 32 N.E. 4; Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711; Westmoreland v. United States, 155 U.S. 545, 15 S.Ct. 243, 39 L.Ed. 255. The statement that the deceased 'then and there instantly died' is a sufficient allegation that the death occurred within a year and a day after the assault. Com. v. Robertson, 162 Mass. 90, 38 N.E. 25. With the aid of the statutory provision in regard to time and place, these two counts are unquestionably good. Com. v. Rogers, 181 Mass. 184-191, 63 N.E. 421. They are also good as statutory counts, even though they do not follow the prescribed statutory form. Rev. Laws, c. 218, § 67.

The first count was intended to be strictly statutory. It follows exactly the form prescribed in Rev. Laws, c. 218, § 67, except that it does not contain the suggested statement of the manner in which the assault was committed. As the other two counts are good, it is unnecessary to determine whether this is sufficient. It contains no statement in terms that the death occurred within a year and a day after the fatal stroke. To this objection the commonwealth answers that under the statute this is included in the meaning of the word 'murder.' It may also be contended that Rev. Laws, c. 218, § 20, covers this in the provision that 'all allegations of the indictment shall, unless otherwise stated, be considered to refer to the same time and place.' In this particular the count is like one in Com. v. Storti, 177 Mass. 339, 58 N.E. 1021, in reference to which the court, finding it unnecessary to decide the constitutional question involved in a similar attack upon its validity, declined to give countenance to the suggestion that it was unconstitutional.

In reference to the defendant's contention that in other particulars the crime is not 'fully and plainly, substantially and formally, described to him,' as required by the twelfth article of the Declaration of Rights in the Constitution of Massachusetts, we may quote from Com. v. Robertson, 162 Mass. 90, 96, 38 N.E. 25, 26, the statement that 'these provisions for the protection of an accused person only require such particularity of allegation as may be of service to him in enabling him to understand the charge and to prepare for his defense.' We also notice, as an important part of the present statute, the provision for a bill of particulars in all cases where the indictment alone is not sufficiently full to give the defendant his constitutional rights. Rev. Laws, c. 218, § 39. In such cases, under the language of the statute, the defendant is entitled to this as an absolute right. Com. v. Kelly, 184 Mass. 320, 323, 324, 68 N.E. 346. With the aid of this, when needed, an accused person can always answer to a charge with a full understanding of everything involved in it. See, also, Com. v. Dill, 160 Mass. 536, 36 N.E. 472, and cases cited. Without attempting to pass upon the validity of this count in every particular, we do not hesitate to say that the general objections to the constitutionality of the statute are not well founded. See, also, Cathcart v. Com., 37 Pa. 108; Goersen v. Com., 99 Pa. 388; State v. Sloan, 65 Wis. 647, 27 N.W. 616; Jordan v. People, 19 Colo. 417, 36 P. 218; Caldwell v. State, 28 Tex.App. 566, 14 S.W. 122; Com. v. Coleman, 184 Mass. 198-203, 68 N.E. 220. The motion to quash was rightly overruled.

The other exceptions are to the admission and exclusion of evidence. Tillinghast Kirby, a man about 87 years of age, who was then boarding near the shore of the sea in Westport, went out fishing in a small boat on the afternoon of September 9 1903, and his dead body was found on Horse Neck Beach on September 18th, one or two days after an unusually heavy storm. There was a fracture of his skull, as if caused by a blow from a heavy instrument, which, according to the testimony of medical experts, must have caused his death, and there was a rope around his neck. There was testimony that, as Kirby was about to go fishing, the defendant said to him: 'Go with me. I am going out'--and that Kirby replied: 'You go in your boat, and I will go in mine.' It appeared that the defendant and Kirby started at about the same time, each in his own boat, and there was testimony that the defendant was accustomed to carry in his boat a rope, with a strap and weight attached to it like the strap which was attached to the rope found around Kirby's neck when the body was discovered, and that the defendant was observed in his boat near Kirby the last time that Kirby was seen alive. One Pierce testified that he lived in Fall River, that he was brought up with the defendant, and went to school with him when a boy, and that their relations had been intimate ever since. Subject to the defendant's exception, he was permitted to testify that he had a conversation with the defendant at the corner of Pleasant and Ninth streets, in Fall River, about the 1st of May, 1903, in which the defendant said: 'I am going to take you as a friend. You have always been one. I want you to go down to Horse Neck and board a week with Burden Head. You need money, so do I, and Burden Head has from $1,600 to $2,000. And we will take him out in a boat fishing, and I will knock him on the head, tie a rope around his neck, and a stone to the other end, and throw him overboard, and he will never come up; and I will be proprietor down there, and then you can come down and stay any time you like after that.' In regard to this testimony the jury were instructed as follows: 'The jury are not permitted to use it as a basis for an argument that, because the defendant was wicked enough to plan the murder of Burden Head, therefore he is probably guilty of the murder of Tillinghast Kirby. That conversation was introduced for the consideration of the jury, for the purpose of showing a plan...