Com. v. Theberge

• Decision Date: 09 November 1953
• Citation: 330 Mass. 520,115 N.E.2d 719
• Parties: COMMONWEALTH v. THEBERGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 719

115 N.E.2d 719

330 Mass. 520

COMMONWEALTH v. THEBERGE.

Supreme Judicial Court of Massachusetts, Essex.

Argued Oct. 5, 6, 1953.

Decided Nov. 9, 1953.

George Karelitz, Haverhill, Maurice S. Close, Lawrence and Jason Cohen, Haverhill, with him, for defendant.

Albert P. Pettoruto, Asst. Dist. Atty., Lawrence, Donald J. Cregg, Asst. Dist. Atty., Lawrence, with him, for the Commonwealth.

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

RONAN, Justice.

The defendant was indicted, tried, and convicted upon two indictments, the first charging her with manslaughter in two counts, and the second accusing her of arson. Both indictments were tried together subject to G. L. (Ter.Ed.) c. 278, §§ 33A-33G, as amended. The cases are here upon an appeal with a transcript of the evidence, a summary of the record, a transcript of the proceedings before the judge in the investigation of a juror, and an assignment of errors.

The defendant with her four children, whose ages ranged from a year and one-half to less than eleven years, occupied a tenement, comprising one-half of the second floor of a six-tenement house. She left these children in the care of the oldest child when she went from her home on the evening of April 3, 1953, accompanied by one Francis. After visiting various drinking resorts, she and Francis returned to her home shortly before midnight. They continued to drink intoxicating liquor which Francis had purchased. They engaged in an argument which awoke the downstairs tenant. Francis left at about three-thirty o'clock in the morning. The defendant requested her son Thomas to give her the keys to the cellar and, when he was unable to find them, she struck him, knocking his head against a pipe. She told him to go up to a tenement on the third floor which was vacant and open the rear window and the front door which he did. A family named Morasse occupied the other tenement on the top or third floor. The Morasse dog began to bark. It does not appear that anything else was done on this floor. When her son returned from the third floor she asked him if he wanted to light a fire. He replied in the negative. She told him he was going to and to come with her. She told him to get an oil lamp. The lamp contained oil and had been used in the tenement when the supply of electricity failed. The son went with her to a shed or enclosure by or under the rear stairs on the first floor. She poured the oil upon some old papers and old paint cans which were there, after he refused to do so, and then set the papers afire. She took the son to bed with her and told him to stay there until the firemen broke down the door. The rear of the house was soon enveloped in flames. The son dressed and aroused the other children, and they and the defendant escaped from the second floor. Firemen arrived in a few minutes. Three persons were calling for help from a front window. One of them fell or jumped to the street. The dead bodies of the other two were receovered by firemen, victims of asphyxia. We have narrated some of the salient facts which the jury could find. The ruling of the judge, which is challenged by the seventeenth assignment of error, in denying the motions for a directed verdict was right. Commonwealth v. Asherowski, 196 Mass. 342, 82 N.E. 13; Commonwealth v Cooper, 264 Mass. 368, 373, 162 N.E. 729; Commonwealth v. Alba, 271 Mass. 333, 171 N.E. 458.

Various assignments of error may for convenience be disposed of before reaching the principal assignments. There was no error in the judge refusing to require the Commonwealth to read the filing date of specifications as set forth in the first assignment of error, Commonwealth v. Belenski, 276 Mass. 35, 40, 176 N.E. 501, nor in permitting Francis to testify that he and the defendant were discussing marriage in their conversation in the early morning prior to the fire, which is the basis for the second assignment. It is undisputed that both were engaged in conversation until he left. Nothing was said about any fire. The admission of such evidence did not constitute a reversible error as the defendant does not show she was prejudiced. The judge was right in excluding evidence as to the number of fires at this dwelling house since 1947. He permitted the defendant to show that there was a cellar fire in December, 1952, and a mattress fire in one of the vacant furnished tenements in February, 1953. Other previous fires, he deemed, were too remote. They were collateral to the issue whether the defendant set the fire for which she was accused. Commonwealth v. Gauvin, 143 Mass. 134, 8 N.E. 895; Noyes v. Boston & Maine Railroad, 213 Mass. 9, 11, 99 N.E. 457; Robitaille v. Netoco Community Theatre of North Attleboro, Inc., 305 Mass. 265, 268-269, 25 N.E.2d 749, 128 A.L.R. 592; Brownhill v. Kivlin, 317 Mass. 168, 171, 57 N.E.2d 539. The exclusion of this evidence which is presented by the third and fourth assignments of error was correct.

One Kelleher, a member of the State police attached to the fire marshal's division, had investigated six hundred fires and in connection therewith he was familiar with different kinds of burning fluids. He was properly permitted to testify that the odor from the lamp, the contents of which the jury could find were used by the defendant in igniting the fire, was the odor of range oil. He could properly be found to be an expert, Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 599, 108 N.E. 474; and even if he was not, the odor of the fluid used in an ordinary oil lamp would seem to be a matter of common knowledge. Commonwealth v. Timothy, 8 Gray, 480; Haines v. Hanrahan, 105 Mass. 480; Commonwealth v. D'Amico, 254 Mass. 512, 150 N.E. 321. If a question asked an expert calls for an answer which is a matter of common knowledge and it is properly answered, the jury are entitled to the answer. Greene v. Boston Elevated Railway Co., 207 Mass. 467, 93 N.E. 837. There is consequently nothing in the fourteenth and fifteenth assignments of error attacking this evidence of Kelleher. The thirteenth assignment is based upon a question in direct examination put to the son in reference to the lamp. The record describes the ground for this assignment as follows:

'Assistant district attorney: And was that the same lamp that you used the night of the fire?

'The witness: Yes.

'Assistant district attorney: I would like to offer this at this time, if your Honor pleases. It has already been identified. I would like to offer this.

'Counsel for the defendant: Your Honor please, I am objecting to it.

'The Judge: Admitted. (Lamp marked 'Ex.2').

'Counsel for the defendant: Will your Honor note my exception?'

It is plain that no objection was made to the question and answer of the witness and that the only exception saved was to making the lamp an exhibit. The lamp was properly introduced in evidence. Instruments employed in the commission of a crime charged against a defendant are competent evidence. Commonwealth v. Giacomazza, 311 Mass. 456, 470, 42 N.E.2d 506; Commonwealth v. O'Toole, 326 Mass. 35, 39, 92 N.E.2d 618.

Assignments of error numbered 5, 6, 7, 8, 9, 10, 11, 12, 16, and 18 all relate to different objections of the defendant at the preliminary examination of the son to permitting him to appear as a witness and to testify in behalf of the Commonwealth. Before the witness was allowed to testify the judge in the absence of the jury conducted a preliminary examination in which many questions were put to and answers made by the son. During this hearing counsel for the defendant orally requested the judge to allow the objections of the defendant, as the mother and legal custodian, and to prohibit her son from testifying or, if those requests were refused, to appoint a guardian ad litem for the son, and to order an examination to be made by a psychiatrist and to apprise the son of his rights to refuse to give evidence incriminating himself. At the close of the hearing, the judge stated that the son was capable of testifying and that he would permit him to do so, but that other than finding that the son had sufficient ability to testify, he was not going into any of the other matters suggested by the defendant's counsel. Counsel then urged that, if the defendant was not the proper party to raise the question, the son should not testify on the ground that he might incriminate himself, and that a guardian ad litem should be appointed. The judge stated that he would adhere to his former ruling, that is, not to pass then upon the various matters suggested by the defendant other than the capacity of the son to testify, and that he would not make any order for the appointment of a guardian ad litem as suggested by the defendant. The defendant saved an exception. The only other exception saved by the defendant at this hearing was to the ruling that the son was of sufficient ability to testify and that he could testify. The first of these two exceptions, which is the basis of the seventh assignment of error, would seem to embrace only the refusal of the judge to appoint a guardian ad litem. He had heard the son testify at considerable length and had formed the opinion that he was of sufficient intelligence and mental ability to testify. The record discloses no reason for the appointment of a guardian ad litem, as set forth in this assignment of error. See, for instance, Welch v. Fox, 205 Mass. 113, 91 N.E. 145; Sullivan v. Judges of Superior Court, 271 Mass. 435, 437, 171 N.E. 490.

So far as this first exception may be construed as relating to the refusal of the judge to pass upon any of the other various arguments advanced by the defendant at this hearing, it should be pointed out that the son had not then testified as a witness. The judge at that posture of the case was not required to pass upon any of these objections. The judge at the beginning of the preliminary examination correctly defined its scope in stating that he would only...