Com. v. Young

• Decision Date: 21 December 1950
• Parties: COMMONWEALTH v. YOUNG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 133

96 N.E.2d 133

326 Mass. 597

COMMONWEALTH v. YOUNG.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 3, 1950.

Decided Dec. 21, 1950.

E. M. Sullivan, Asst. Dist. Atty., Boston (W. J. Foley, Jr., Asst. Dist. Atty., Boston, with him), for the Commonwealth.

E. O. Proctor, Boston (V. J. Cosgrove, Boston, R. K. Lamere, Milton, with him), for defendant.

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

WILLIAMS, Justice.

The defendant was found guilty by a judge of the Superior Court, sitting without jury, of manslaughter in causing the death of one Thomas Rivers. The trial was held under the provisions of G. L. (Ter.Ed.) c. 278, §§ 33A-33G, as amended, and after imposition of sentence the defendant appealed to this court, assigning as error the denial of his motion for a finding of not guilty. We consider this denial as equivalent to a ruling that the evidence warranted a finding against the defendant. See Commonwealth v. Carter, 306 Mass. 141, 143, 27 N.E.2d 690.

The following facts are not in dispute: On February 1, 1950, one John F. Daley, armed with a gun and knife and accompanied by two associates, effected the escape of one Atwood White from the Metropolitan State Hospital in Waltham. White was being held in the hospital for observation as to his sanity after arraignment on an indictment for armed robbery. On the evening of February 2 the defendant, a detective inspector in the State police, with State police officers Mead and Fried and Boston police officers Finnerty and Coughlin met at police station 15 in Charlestown. The purpose of the meeting was to plan the arrest of Daley, who was expected to return to his home at 4 Bolton Place in Charlestown on that night about ten o'clock. Both Daley and White had police records and the State officers had in their possession police pictures of both men with their physical descriptions. The State officers had never seen Daley or White personally. Shortly before ten o'clock all five officers with one Johnson, a clerk in the office of the Middlesex district attorney, who had seen Daley with White when the latter had been arraigned in the court at East Cambridge, went to the vicinity of Bolton Place. Coughlin and Finnerty stationed themselves inside the house where Daley lived. Mead, Fried, and Johnson remained in an automobile which was parked on Franklin Street near the corner of Bolton Place and High Street. Young went into Cary Place, a dead-end alley, which ran northerly from High Street parallel to Bolton Place and led to the rear of the Daley house. Cary Place was approximately fifty feet in length and twelve to fifteen feet in width with a narrow sidewalk along its westerly side raised about six inches from the surface of the alley. The alley received light, the amount being in dispute, from a Welsbach gas burner located at the farther end of the alley from High Street. An automobile was parked about fifteen feet in from High Street. One Murray occupied the house on the southwest corner of High Street and the alley, and Young took a position behind a six foot board fence enclosing the back yard of the Murray house at a gate or door which opened from the yard into the alley. He was in civilian clothes and was armed with a double action thirty-eight calibre revolver which, to be fired, required a pull of seven and one half foot pounds on the trigger. About 10:15 P.M. an automobile came along High Street by the end of the alley. It stopped, and its lights were turned off. Shortly thereafter a man, later identified as Thomas Rivers who lived at 2 Cary Place, entered the alley from High Street. As he approached the parked automobile and the gate, behind which Young was standing, the latter stepped out from the gate and confronted him. What occurred thereafter is in controversy. Young testified that he had his revolver in his right hand, held low at his side and pointing down; that he said, 'I am a police officer, who are you'; that the man without replying lunged for him and grabbed him with both hands; that he, Young, went down off the curbing of the sidewalk; and that he shoved the man away and twisted to his right and 'just then my gun went off.' The bullet from the gun entered the chest of Rivers slightly to the right of his sternum, penetrated his heart, and came out at his back. The course of the bullet from front to back was substantially horizontal. It was a so called contact shot, the gun being held in contact with the clothing. Rivers, within a short time, slumped to the ground and died. A later examination of his clothing indicated that at the time the shot was fired the outer garment of Rivers had been pulled or pushed nine inches from left to right. Murray, a witness for the Commonwealth, testified that he was in his house and heard a voice and a shot in the alley at almost the same time. He at once went out into the alley and saw two men, Rivers and Young, standing nearby. Young appeared to have his arms around Rivers holding him up. Murray said to Young, "that boy lives in the house there,' pointing toward the Rivers boy's home,' and Young replied, 'Jesus, I got the wrong guy and let him have it.' Mrs. Murray testified that she heard a shot while walking on High Street, and on entering the alley saw Young and said to him, 'That is the Rivers boy; why did you shoot him?' and that Young 'took his hand down and said, 'I gave it to him, I gave it to him.'' Officer Finnerty testified that later Young said to him, 'I shot the wrong man.'

Rivers unquestionably was killed by a bullet from a revolver held in the hand of the defendant. It was a question whether the shot was fired intentionally or, as contended by the defendant, accidentally. If fired intentionally, the further question presented was whether Young, a police officer stationed in the alley for the purpose of apprehending a person who had committed a felony, was justified in shooting.

These were questions of fact for the judge. Commonwealth v. Randall, 260 Mass. 303, 157 N.E. 354; Commonwealth v. Peterson, 257 Mass. 473, 154 N.E. 260. It is stated in Commonwealth v. Webster, 5 Cush. 295, 305, that 'when one person assails another violently with a dangerous weapon, likely to kill and which does in fact destroy the life of the party assailed, the natural presumption is, that he intended death or other great bodily harm.' Where the killing is caused by the intentional use of a...