Com. v. Tucker

• Decision Date: 28 November 1905
• Citation: 189 Mass. 457,76 N.E. 127
• Parties: COMMONWEALTH v. TUCKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 457

76 N.E. 127

COMMONWEALTH v. TUCKER.

Supreme Judicial Court of Massachusetts, Middlesex.

November 28, 1905

COUNSEL

Herbert Parker, George A. Sanderson and Frederic B. Greenhalge, for the Commonwealth.

James H. Vahey, Thomas F. Vahey, and Charles H. Innes (Philip Mansfield, of counsel), for defendant.

OPINION

HAMMOND J.

We have not found it necessary to consider whether the indictment should have been quashed for the reasons set forth in the special plea and the motion to quash, because we are of opinion that that question is not before us for decision. The defendant having entered a plea of not guilty was not entitled, as a matter of right, to retract his plea and plead anew. He could do this only by the permission of the court (1 Chitty, Crim. Law, 436; Commonwealth v. Blake, 12 Allen, 188; Commonwealth v. Lannan, 13 Allen, 563) and whether that permission should be granted rested with the sound discretion of that court. Acting under that discretion the court declined to allow the defendant to retract his general plea, overruled the motion, and therefore, because not filed in time, the plea. No error in law is shown in this decision. It was final, and cannot be revised by this court.

2. The only objection to Hubbard, who was summoned as a juryman, was that the constable to whom the venire was sent for service had not given a bond to serve civil process. This was not ground for a challenge for cause. The statutes provide that 'the venires shall be delivered to the sheriff of the county to be transmitted by him to a constable in each of the cities and towns to which they are respectively issued, who shall forthwith serve them in cities on the board authorized to draw jurors and in towns on the selectman and town clerk.' Rev. Laws, c. 176, § 11. After the jurors are drawn, 'the constable shall, four days at least before the time when the jurors are required to attend summon each person who is drawn, * * * and shall make a return of the venire with his doings thereon to the clerk of the court, before the sitting of the court by which it was issued.' Section 24. It is plain that this is not a service of a writ or an execution in an action between two persons, but is simply a part of the process for the organization of the court. It is special and specific, and we are of opinion that the term 'civil process,' as used in Rev. Laws, c. 25, § 88, does not include this specific work. The challenge for cause was rightly disallowed.

3. In the course of his opening address to the jury, the district attorney stated that 'the family of the deceased searched the house after the murder, and only 36 cents were found in one pocketbook downstairs in the bureau; that when Amy Roberts, a servant in the family of the deceased, went away in the morning, there was at least a $10 bill and two $1 bills and other money in the deceased's pocketbook downstairs.' He then proceeded as follows: 'The rest of it [money] had disappeared. It also appears that shortly before this time the defendant was trying to raise money to go to St. Louis; that he sold a revolver, * * * several suits of clothes; that he pawned a watch.' Here he was interrupted by the defendant's counsel, who contended that any such evidence would be incompetent, and therefore it was improper for the district attorney to speak to the jury about it, even in the opening. Thereupon a colloquy ensued between the court, district attorney, and defendant's counsel, in which the defendant's counsel conceded that it was 'competent for them [the government] to show that money was missing from the house, and to argue, if it is possible, that the defendant had that money'; but his contention was that it was not proper to attempt to show that 'the defendant was hard up, or that he was attempting to go to St. Louis, or anything which indicated his poverty'; that such evidence does not establish any motive as matter of law. In response to an inquiry from the court, he further said that if the intention of the district attorney was to show that the defendant was without money prior to the murder, but that afterwards he had money, he would not object. The district attorney then said that he intended to go as far as that. The counsel for the defendant still insisted that the district attorney ought to say 'what he intends to prove,' and that in the absence of any such further statement the opening remarks referred to were improper. At the end of the colloquy the court allowed the district attorney to finish what he had to say on the subject, 'with the understanding that the court has not ruled on it yet, and it will be ruled on when the whole statement is made,' and said that the court understood that the defendant had reasonably interrupted to save his rights. The subject was not again referred to by the defendant's counsel, and no further request for a ruling thereon was made. The district attorney then continued as follows: 'It will appear also, gentlemen of the jury, that within a few days after the murder he appeared at a certain place, and displayed money, a part of which was a $10 bill; that he then explained the loss of other money by saying that it had been taken from him by a woman whom he had met at a theater, and afterwards went to a hotel with.' During the trial the commonwealth offered evidence in support of this statement of the district attorney, and the court directed the jury to disregard entirely so much of the evidence as related to the defendant's statement that money had been taken from him by a woman.

Following out the purpose thus outlined in the opening the commonwealth introduced evidence tending to show that upon various occasions within 10 days prior to the murder the defendant sold or pawned various articles of personal property, mostly wearing apparel of small value, receiving in all $17.50 in cash; that on April 8th, being a few days after the murder, he redeemed for $5.75 two of the articles pawned prior to the murder as aforesaid. To the admission of all this evidence the defendant excepted. One Davis, a witness called by the commonwealth, after having testified without objection that on the 6th day of the same April the defendant was in a restaurant where the witness was working, and said that he had needed some money, and had pawned some things a short time before, further testified, subject to the exception of the defendant, that the defendant upon the same occasion said that 'he had been out on a good time, and lost some money; that he had pawned some * * * to raise money;' that in paying for his dinner, he handed the witness a $10 bill 'brown on one side,' and that at the same time the witness saw in defendant's possession a $5 and a $2 and some other bills. There was no contention that the articles pawned and sold were not the defendant's property. It also appeared, upon the cross-examination of one of the witnesses called by the commonwealth, that on the 6th day of the same April the defendant pawned his own diamond ring, receiving therefor $15.

It is argued by the defendant that before the law the rich and the poor stand alike, and that the poverty of the defendant is not admissible to show a motive in him to commit the crime with which he is charged. All this may be conceded to be true. As stated by Bigelow, C.J., in Commonwealth v. Jeffries, 7 Allen, 548, 565, 566, 83 Am. Dec. 712: 'It is doubtless true that in a large class of cases the poverty or pecuniary embarrassments of a party accused of crime cannot be shown as substantive evidence of his guilt. The reason for the exclusion of such evidence is that in those cases there is no certain or known connection between the facts offered to be proved and the conclusion which is sought to be established by it. To render evidence of collateral facts competent there must be some natural, necessary, or logical connection between them and the inference or result which they are designed to establish. It does not follow because a man is destitute that he will steal, or that when embarrassed with debt and incapable of meeting his engagements he will commit forgery.' Mere poverty, considered apart from all other facts tending to connect the accused with a crime, never can tend to show criminal intent or criminal motive. Upon this record, however, it is perfectly clear that the evidence, the substance of which we have recited, was offered and admitted upon an entirely different ground, namely, to show that at the time of the murder there was in the house in which the murder was committed a certain amount of money consisting mostly of bank bills, and that shortly after the murder this money was in the possession of the defendant, or, to use the language of the defendant's counsel, 'to show that money was missing from the house and to argue, if it is possible, that the defendant had that money.'

Such evidence unexplained would tend to show that the defendant was in the house at the time of the murder. It was not necessary that the bills should be identified by earmarks. Commonwealth v. O'Neil, 169 Mass. 394, 48 N.E. 134. One of the steps in such a process might be to show that before the murder the defendant was short of money and after the murder he was not short, that is, to show a marked change in the amount of money in his possession. This the commonwealth undertook to do, and all the evidence which was admitted upon this branch of the case, including the defendant's statements as to his lack of money, his losses, his financial transactions both before and after the murder, and his possession of money, were all admissible upon this step. It is true that all this evidence did not tend to connect the defendant with the crime with which he was charged, unless there was evidence tending to show...