Com. v. Wallace

• Citation: 190 N.E.2d 224,346 Mass. 9
• Parties: COMMONWEALTH v. James A. Roy WALLACE.
• Decision Date: 02 May 1963
• Court: United States State Supreme Judicial Court of Massachusetts

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.

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.

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 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 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 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 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 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 ample time to put his gun in the safe position before Pringle came within close range, or so the triers of fact could have found. They could have rejected the defendant's evidence tending to show that the discharge of the gun was either accidental or negligent. Indeed, the evidence of the high concentration of shot which pierced Pringle's midriff, when considered with his wife's testimony that the defendant faced the deceased and told him to stay where he was would warrant the jury inferring that the defendant, though not intending to kill, pointed the gun at Pringle and, while so pointed, it in some manner went off. ² Certainly, on such a hypothesis the defendant's conduct could be found to be wanton or reckless. The principles governing involuntary manslaughter have been fully discussed in the leading case of Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902, and need not be restated.

The defendant relies heavily on Commonwealth v. Bouvier, 316 Mass. 489, 55 N.E.2d 913. But there is at least one very significant difference between the facts in that case and those here. As we said in the Bouvier case, 'The pertinent evidence would not warrant the jury in finding that the defendant knew or ought to have known that the gun was loaded.' (316 Mass. p. 496, 55 N.E.2d p. 917). Here the defendant knew he was handling a loaded gun.

2. Shortly after the shooting the defendant and his companion were brought to the scene of the shooting in a police car operated by Officer Noon. Upon their arrival Mrs. Pringle asked Officer Noon, 'which boy had done it.' The officer pointed out the defendant, and Mrs. Pringle said, 'Let me at him; I could kill you.' This evidence when first introduced was admitted over the defendant's objection and exception. On numerous occasions later in the trial, this evidence came in without objection. Thus, viewed as an evidentiary ruling the admission of this statement would not be ground for reversal, But, as we shall presently demonstrate, it ought not to have been admitted. The utterance was not admissible as a spontaneous declaration, for it was made a considerable time after the killing. Rocco v. Boston-Leader, Inc., 340 Mass. 195, 196-197, 163 N.E.2d 157. '[I]t was no part of any material fact or act.' Commonwealth v. Chance, 174 Mass. 245, 250, 54 N.E. 551. Nor does it appear that it 'would give a 'complete picture' of an event otherwise incomplete.' Commonwealth v. Snyder, 282 Mass. 401, 418, 185 N.E. 376. The Commonwealth urges that the statement was admissible under the rule that '[t]estimony that a criminal defendant (not under arrest) remained silent when an accusation against him was made in his presence is competent as an implied admission if it be shown that he heard and understood the accusation and if the accusation concerned matters within his knowledge which it would have been natural for him to deny.' Commonwealth v. Burke, 339 Mass. 521, 532, 159 N.E.2d 856, 77 A.L.R.2d 451. Clearly, this is not the kind of statement to which the defendant could be expected to reply. Commonwealth v. Boris, 317 Mass. 309, 318, 58 N.E.2d 8. Mendelsohn v. Leather Mfg. Corp., 326 Mass. 226, 238, 93 N.E.2d 537. The fact that the defendant had shot Pringle was not in dispute; the defendant had already told the officer that he had shot someone, although he contended it was accidental. Mrs. Pringle's feelings of animosity toward the defendant had no bearing on his guilt or innocence. It was in no sense an accusation; rather it was the excited emotional reaction of a wife who had just witnessed the shooting of her husband. The defendant was under no duty to reply to such a statement and his silence cannot be regarded as an admission. If the matter had rested merely on the erroneous ruling, the error, for the reason indicated above, would not have required reversal.

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