Com. v. Taylor

• Decision Date: 26 July 1951
• Parties: COMMONWEALTH v. TAYLOR (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 22

100 N.E.2d 22

327 Mass. 641

COMMONWEALTH v. TAYLOR (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 7, 1951.

Decided July 26, 1951.

E. M. Sullivan, Asst. Dist. Atty., Boston, for the Commonwealth.

W. S. West, Boston (J. W. Bailey, Boston, with him), for defendant.

Present: QUA, C. J., LUMMUS, WILKINS, SPALDING & WILLIAMS, JJ.

WILLIAMS, Justice.

The defendant has been found guilty on two indictments; the first charging him with the murder of Agnes Burnett on June 29, 1946, and the second with the robbery from the same Agnes Burnett of a radio on the same day. On the first indictment the verdict was guilty of murder in the second degree and sentence was imposed. In the second case the indictment after verdict was placed on file. The cases were tried together and are before us on the defendant's appeals accompanied by an assignment of errors, applicable to both cases, a summary of the record, and a transcript of the evidence as required by G.L. (Ter.Ed.) c. 278, §§ 33A-33G, as amended by St.1939, c. 341.

There was evidence substantially as follows. Agnes Burnett was a widow eighty-four years of age living at 49 Newcomb Street in the south end of Boston. On the morning of Saturday, June 29, 1946, she caused her furniture and personal effects to be moved by one Choquette, a truckman, to an apartment which she had rented on the third floor of a nearby apartment house at 978 Harrison Avenue. Choquette hired two colored men, of whom one was the defendant, to assist him in the moving. Among Mrs. Burnett's effects was a table radio, gray in color, its width gradually diminishing near the top by means of lateral setbacks. She was observed listening to it in her new apartment while the three men were bringing up the furniture. The moving was completed about 11:30 A.M. and Mrs. Burnett was left alone in the apartment. The defendant was taken by Choquette to a point near the corner of Washington and Northampton street where Choquette had found him earlier that morning. At about noon on the same day, Mrs. Burnett was seen approaching the entrance to No. 978 from the direction of her former apartment. She was accompanied by the defendant who was dressed in coveralls and was carrying a push broom, an ordinary broom and a mop. Mrs. Burnett was wearing a dress patterned with blue and red flowers and a red straw hat. She entered the street door of No. 978 with the defendant. About one half hour later the defendant was seen leaving No. 978 carrying a radio which looked like the one owned by Mrs. Burnett. Later that afternoon the woman who had the management of the premises left a key to Mrs. Burnett's apartment with one Withee, a friend of Mrs. Burnett, who lived on the first floor of No. 978. Twice that evening Withee went upstairs to Mrs. Burnett's apartment with the key, knocked on the door, but received no response. On Sunday, June 30, Withee accompanied by a police officer entered Mrs. Burnett's apartment by means of the key. They found no one there and noticed that a door to a closet was nailed up. There was no mattress on the bed and a trunk was tied up with a rope. Between Sunday and the following Wednesday, July 3, one Miss Flaherty, who lived in the apartment below that of Mrs. Burnett, noticed a strong odor in the building. The weather was warm, the mean temperature between June 29 and July 3 being about seventy-five degrees. On Wednesday Withee went to the police station and returned with police officers. They entered Mrs. Burnett's apartment, pried open the closet door and found therein the dead body of an elderly woman. The body was in an advanced stage of putrefaction. It was clothed in a cotton, red and blue flowered print dress. There were no shoes upon the body. The nose was fractured and on the front of the body below the collar bone were three punctured wounds, two circular and one, which did not penetrate the skin, oblong in shape. The oblong wound measured one fifth of an inch across. In the opinion of the medical examiner the wounds had been produced by a screw driver and had caused the woman's death. The body was that of a plump woman, five feet, eight inches tall, with gray hair. The gall bladder was missing. Two nails had been driven through the closet door above and below the knob into the casing at an angle of thirty degrees. On the floor of one of the rooms a hammer was found; a handbag and some green rosary beads were on the stove; a red straw hat was on a table; and in the sink were false teeth in a glass of water. Because of the condition of the body it was not shown to Withee who was present at its discovery and it was not viewed by Mrs. Burnett's son and daughter-in-law who later came to Boston from their home in New York. The physical characteristics of the body were those of Mrs. Burnett. Some years before she had undergone a gall bladder operation. The dress on the body was like that which she had been wearing on the morning of June 29 and was like one given to her by her daughter-in-law a year or more before. The straw hat, handbag and rosary beads found in the apartment were similar to those possessed by Mrs. Burnett.

The defendant Taylor was hired by Choquette between nine and nine-thirty on the morning of June 29. Earlier that morning Taylor had gone to Camden Loan Company at 802 Tremont Street and had tried to borrow $10 from one Freedman, the proprietor, saying that he was 'broke.' Freedman refused to lend him the money as the defendant at that time already had various articles in pawn. The defendant was wearing coveralls. Around 6 P.M. on the same afternoon or evening the defendant returned to the loan company dressed in striped pants. He paid the pawn broker $40 and took away the property which he had in pawn, saying to Freedman, 'There is blood on this money.' On July 2 he returned and pawned a radio. He received $8 for it. It was a gray metal 'Air King' table radio with painted ornaments on the sides and was like in shape and color to the one owned by Mrs. Burnett. An 'Air King' radio similar in type, color, and shape had been given to Mrs. Burnett by her son nine or ten years before. On Saturday, July 6, police officers went to the apartment of the defendant at 74 Ruggles Street, found the defendant's wife there, and saw the defendant running from the building across the back yard. They obtained from Mrs. Taylor some coveralls of a greenish shade which later were admitted by Taylor to be his. In the pocket of the coveralls was a screw driver which was admitted in evidence. Examination by the chemist of the police department disclosed several minute traces of human blood on the coveralls and on the blade of the screw driver. About midnight on July 6, or early in the morning of July 7 the defendant was apprehended in a garage near his home. When the officers appeared he attempted to run.

It was the contention of the defendant that he was not one of the men hired by Choquette on the morning of June 29 and that he did not participate in moving Mrs. Burnett from Newcomb Street to Harrison Avenue. He denied ever having seen Mrs. Burnett. He testified that at the time of the moving he was repairing an automobile for one John Ufie. He also testified that the radio, which he admitted having pawned with Freedman on July 2, was received by him from one Mary Mitlo who had given it to him in part payment for a lady's wrist watch which he had sold her. He gave as his reason for running away when he saw or heard the police officers in his apartment that he was a fugitive from justice from North Carolina out on bail and was afraid that he was being surrendered by his bondsman.

The defendant has filed thirty-one assignments of errors, numbered to correspond with the numbers assigned in the transcript of testimony to the exceptions on which they were based. No assignments of errors have been filed based on exceptions numbered 8, 12, 17, 19, 22, 23, 25, and 36, which are expressly waived. Assignments numbered 4, 5, 6, 7, 9, 10, 16, 18, 20, 21, and 37 have not been argued and are treated as waived. Commonwealth v. Tyler, 199 Mass. 490, 492, 85 N.E. 569; Commonwealth v. Riley, 210 Mass. 387, 396, 97 N.E. 367; Commonwealth v. Lundin, 326 Mass. 551, 556, 95 N.E.2d 661.

Assignments 1, 2, and 3 involve the right of counsel to question prospective jurors on the voir dire examination and are considered together. Assignment 1 is to the refusal of the judge to permit counsel for the defendant personally to examine the jurors as to their qualifications. Assignment 2 is to the refusal to put to the jurors the following questions: '1. Have you ever been a member of or connected with the police department of the city of Boston or any city or town? 2. Are you related by marriage with any officer or officers of the police department of the city of Boston? 3. Have you read the newspaper account of the death of Agnes Burnett and the defendant's alleged connection therewith? 4. Have you formed any opinion in regard to this case that would prevent you from giving the defendant a fair trial? 5. Are you conscious of any prejudice or bias on account of the defendant's race or color?' Assignment 3 is to the denial of a motion to have a mistrial declared because of insufficient and inadequate examination of the jurors. The judge propounded to each juror as he was called the customary five statutory questions. See G.L. (Ter.Ed.) c. 234, § 28; c. 278, § 3. There was no error in refusing to permit counsel for the defendant further to interrogate the jurors. That such interrogation by counsel is not matter of right has been settled adversely to the defendant's contention by numerous decisions of this court. The extent of the examination of the jurors by the judge was within his discretion and his ruling as to the proposed additional questions discloses no error. See Commonwealth v. Gee, 6 Cush. 174, 177-178; Commonwealth v. Millen, 289 Mass. 441, 475, 194 N.E. 463; ...