Com. v. Wallace

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore WILKINS; SPALDING
Citation190 N.E.2d 224,346 Mass. 9
Decision Date02 May 1963
PartiesCOMMONWEALTH v. James A. Roy WALLACE.

Page 224

190 N.E.2d 224
346 Mass. 9
COMMONWEALTH

v.
James A. Roy WALLACE.
Supreme Judicial Court of Massachusetts, Berkshire.
Argued March 4, 1963.
Decided May 2, 1963.

[346 Mass. 10]

Page 225

Clement A. Ferris, Asst. Dist. Atty. (Leonard E. Gibbons, Asst. Dist. Atty., with him), for Commonwealth.

John N. Alberti, North Adams (Paul A. Tamburello, Pittsfield, and George N. Tobia, Gardner, with him) for defendant.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.

[346 Mass. 10] SPALDING, Justice.

On November 26, 1960, in Pittsfield James Pringle was wounded by the discharge of a shotgun in the defendant's possession. On December 3, 1960, Pringle died from a 'massive pulmonary embolism' which, according to the medical evidence, was the result of the shotgun wounds. Since the defendant was sixteen years of age at the time of the shooting, a delinquency complaint was brought against him in a District Court. See G.L. c. 119, §§ 52-59. The judge of the District Court, being of opinion that the defendant should be dealt with on the criminal side of the court rather than as a delinquent child, dismissed the delinquency complaint. § 61. Thereupon, the defendant was brought before the District Court on a criminal complaint made under § 75. Following a hearing on this complaint the defendant was indicted for murder in the second degree. See § 80. He was found guilty of manslaughter and he brings the case here by appeal with numerous assignments of error. G.L. c. 278, §§ 33A-33G.

There was evidence of the following: Early in the afternoon of November 26, 1960, the defendant, armed with a double-barrel shotgun, decided to go to the Morewood Lake [346 Mass. 11] area in Pittsfield to hunt squirrels. On the way he met a friend, William Hall, who went along with him. In going toward Morewood Lake they entered the grounds of Miss Hall's School; no permission had been given to either the defendant or his companion to hunt on the school grounds. While there they saw a squirrel which the defendant fired at. The defendant

Page 226

then reloaded his gun. At this point Hall, who was some distance away when the shot was fired, joined the defendant and informed him that a car was coming. As Hall ran from the area his hat got caught on a bush which was located on a knoll. The defendant followed Hall and, when he had reached the knoll, crouched down. While in this position the defendant heard the approaching car come to a stop, and also heard somebody get out of it. This person proved to be James Pringle, the caretaker of Miss Hall's School.

Mrs. Pringle, who had accompanied her husband, testified that upon getting out of the car her husband 'walked over to where he saw the boy, and as he walked, the boy [holding a gun] arose from [a crouched position] behind a knoll,' and she heard the boy say, 'Don't move.' Immediately thereafter '[t]he gun went off, and * * * [her] husband went down.' According to Mrs. Pringle there was a 'clear view' of the boy when she observed him. There was evidence that Pringle was no more than fifty to seventy-five feet from the defendant when the gun was discharged. The defendant then ran to where Hall was standing and told him that he thought he had accidentally shot a man in the foot and said, 'Let's go.' The defendant and Hall thereupon left the area. After they had proceeded for some distance, Hall suggested to the defendant that they return to the scene of the shooting. While returning, they encountered a police car and the defendant 'flagged * * * [it] down,' informing the officer that he had accidentally shot someone. Both the defendant and Hall got into the police car and proceeded to the scene of the shooting.

The defendant's version of the shooting was in substance this: When he got to the knoll he saw Hall's hat which had [346 Mass. 12] caught on a bramble bush. As he squatted down to get the hat, the stock of the gun was resting on his hip with the barrel pointed straight up, and he had his fingers on the triggers. 1 The safety was in the off position so that the gun could be fired by merely pressing the triggers. When the person who had gotten out of the car came toward, him, he told him to stay where he was and then tried to 'break the action of the gun.' He tried to make the gun safe by moving the top lever over toward the right with his thumb. In attempting to 'get out of the bramble bushes' he jumped up and wheeled around to his right; the gun muzzle dropped and the left barrel was discharged by reason of pressure exerted on the rear trigger.

1. The defendant requested the judge to instruct the jury that there was no evidence to warrant a verdict of manslaughter. This request was refused subject to the defendant's exception. Assignment of error No. 10. See Commonwealth v. Devereaux, 256 Mass. 387, 393-394, 152 N.E. 380; Commonwealth v. Bouvier, 316 Mass. 489, 55 N.E.2d 913. The judge instructed the jury with respect to voluntary manslaughter. Doubtless he did so to differentiate that offence from murder and involuntary manslaughter. But there was no evidence of voluntary manslaughter (see Commonwealth v. Bouvier, 316 Mass. 489, 494, 55 N.E.2d 913) and the judge, if he mentioned the subject at all, should have told the jury that there was no evidence of the offence.

There was, we think, sufficient evidence to warrant a finding that the defendant's handling of the shotgun was wanton or reckless and indicated such a 'disregard of probable harmful consequences to another' as to constitute involuntary manslaughter. Commonwealth v. Welansky, 316 Mass. 383, 397, 55 N.E.2d 902. Commonwealth v. Bouvier, 316 Mass. 489, 494-496, 55 N.E.2d 913. Commonwealth v. Atencio, Mass., 189 N.E.2d 223. a The defendant

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was in control of a highly lethal weapon which, because of the attendant danger, called for a correspondingly high degree of care in its handling. At the time of [346 Mass. 13] the shooting the safety was off and the gun was ready to fire. The defendant knew this and he also knew that a person was near by who was headed in his direction. He had had...

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37 practice notes
  • Com. v. Mahnke
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • October 7, 1975
    ...Commonwealth v. Gleason, 262 Mass. 185, 190, 159 N.E. 518 (1928). Though this distinction has been criticized (Commonwealth v. Wallace, 346 Mass. 9, 17, 190 N.E.2d 224 (1963)), we do not consider its continuing validity in the instant case because we deem correct the admission at trial of e......
  • Com. v. Garcia
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 8, 1980
    ...of our more recent decisions which seem to question the exclusion of admissions from its operation. Page 468 In Commonwealth v. Wallace, 346 Mass. 9 at 17, 190 N.E.2d 224, at 229 (1963), we said: "Notwithstanding the rule in Commonwealth v. Haywood, 247 Mass. 16, 18, 141 N.E. 571, whic......
  • Com. v. Campbell
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 27, 1967
    ...333 Mass. 640, 643-644, 133 N.E.2d 226. Commonwealth v. Hartford, 346 Mass. 482, 490-491, 194 N.E.2d 401. See Commonwealth v. Wallace, 346 Mass. 9, 12, 190 N.E.2d 224. We have also held it to be error to give an instruction on manslaughter where there is no evidence to justify such an instr......
  • Com. v. Harris
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 15, 1976
    ...at the time of the defendant's trial, of an arrested suspect's failure to respond to police questioning. See Commonwealth v. Wallace, 346 Mass. 9, 190 N.E.2d 224 (1963); Commonwealth v. Anderson, 245 Mass. 177, 139 N.E. 436 (1923). However, the Commonwealth argues that the defendant's fligh......
  • Request a trial to view additional results
37 cases
  • Com. v. Mahnke
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • October 7, 1975
    ...Commonwealth v. Gleason, 262 Mass. 185, 190, 159 N.E. 518 (1928). Though this distinction has been criticized (Commonwealth v. Wallace, 346 Mass. 9, 17, 190 N.E.2d 224 (1963)), we do not consider its continuing validity in the instant case because we deem correct the admission at trial of e......
  • Com. v. Garcia
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 8, 1980
    ...of our more recent decisions which seem to question the exclusion of admissions from its operation. Page 468 In Commonwealth v. Wallace, 346 Mass. 9 at 17, 190 N.E.2d 224, at 229 (1963), we said: "Notwithstanding the rule in Commonwealth v. Haywood, 247 Mass. 16, 18, 141 N.E. 571, whic......
  • Com. v. Campbell
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 27, 1967
    ...333 Mass. 640, 643-644, 133 N.E.2d 226. Commonwealth v. Hartford, 346 Mass. 482, 490-491, 194 N.E.2d 401. See Commonwealth v. Wallace, 346 Mass. 9, 12, 190 N.E.2d 224. We have also held it to be error to give an instruction on manslaughter where there is no evidence to justify such an instr......
  • Com. v. Harris
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 15, 1976
    ...at the time of the defendant's trial, of an arrested suspect's failure to respond to police questioning. See Commonwealth v. Wallace, 346 Mass. 9, 190 N.E.2d 224 (1963); Commonwealth v. Anderson, 245 Mass. 177, 139 N.E. 436 (1923). However, the Commonwealth argues that the defendant's fligh......
  • Request a trial to view additional results

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