Commonwealth v. Barber

• Decision Date: 28 November 1927
• Citation: 158 N.E. 840,261 Mass. 281
• Parties: COMMONWEALTH v. BARBER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 281

158 N.E. 840

COMMONWEALTH

v.BARBER et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 28, 1927.

Appeal from Superior Court, Middlesex County; Gray, Judge.

William J. Barber, Walter J. Brady, James P. Downey, and Samuel McCrensky were convicted of assault with intent to rape, and they appeal. Exceptions overruled. Judgment on verdicts.E. J. Flynn and A. L. Baker, both of Boston, for appellant barber.

E. J. Tierney, of Lowell, for appellant Brady.

P. L. Keenan and J. H. Brennan, both of Boston, for appellant Downey.

J. H. Cinamon, of Boston, for appellant McCrensky.

R. T. Bushnell, Dist. Atty., of Boston, for the Commonwealth.

CROSBY, J.

The defendants were tried upon an indictment which charged them with an assault with intent to rape one Hazel Friedman. The defendants Brady and Downey rested at the close of the commonwealth's case. The defendant McCrensky rested after Barber had testified. A motion for a directed verdict was presented by each defendant and all were denied. All of the defendants were found guilty of the offense charged. The defendant Downey filed a motion for a new trial which was denied. Each defendant claimed an appeal and assigned as errors the denial of his motion for a directed verdict, certain exceptions to the admission and exclusion of evidence, exceptions to the charge and to the refusal to give certain instructions. The defendant Downey in addition assigns as error the denial of his motion for a new trial.

There was evidence tending to show that Mrs. Hazel Friedman had spent the evening of December 24, 1926, at the home of her sister in Somerville, and, in company with one Reid, left there some time after 3 o'clock in the morning of December 25, to go to her own home in Cambridge; that when they were near Union Square, in Somerville, Reid was struck by one Leyden (who was indicted and tried with the defendants in the superior court) and knocked down, and Mrs. Friedman was forced into a taxicab; that she screamed and struggled and asked to be let out, and was struck a blow near her eye and rendered unconscious. One Hastings, the driver of the taxicab, testified that he was stopped by three men (two of whom he identified as the defendants Barber and McCrensky), who got into the taxicab and told him to drive to Somerville avenue; that afterwards they told him to stop, and Mrs. Friedman was pulled or pushed into the cab; that two other men then entered the cab; that after riding around for a short while he (the driver) was ordered to stop; that a fight occurred between two of the men, at which time the woman was hysterical and crying; that the driver was then ordered to drive back the way from which they had started, and finally was directed to drive to a place known as Boynton Yards, where he was ordered to stop, and all of the men except Barber got out; that the woman fell out of the cab and was screaming and crying ‘Don't’; that the men then got into the cab and he was ordered to drive straight ahead, leaving the woman on the ground; that they returned to Somerville avenue, arriving there about 5 o'clock that morning, when all the men got out; that shortly afterwards he saw Officer Holmes speak to some of the five men who got out of the cab; that he was able to identify McCrensky and Barber.

Mrs. Friedman testified that when she regained consciousness, she saw the men running toward the taxicab and that at that time she was lying on her back in the street. There was further evidence that her right eye was injured, her mouth bleeding, there were finger marks on both of her thighs, and black and blue spots on her arms and limbs; that parts of her underclothing were missing, and her dress was open, exposing the lower part of her body; that she was hysterical and kept repeating, ‘Those awful men.’ It is plain from the foregoing evidence that it could have been found she had been assaulted with intent to rape.

It is the contention of all the defendants that no assault was committed upon her, either with or without the intent charged in the indictment.

One Holmes, a police officer, testified that he knew all the defendants and had known them between three and four years; that he had seen them frequently around Union Square, in Somerville; that he saw Mrs. Friedman and Reid there the morning of the 25th between 3:30 and 4 o'clock, and that they left and went toward Harvard Square; that about 25 minutes later he saw Reid and talked with him; about 6 o'clock he went to the place where the woman had been left, which was a lonely spot, and found some beads, a hat and other articles of clothing; that about 5 o'clock that morning he saw Barber, Leyden, and McCrensky get out of a taxicab at the corner of Prospect street and Somerville avenue, and Brady and Downey were out near the taxicab or were walking away from it; that he had a conversation with Barber as he got out of the cab, who told him there was no woman in the car with them; that he asked McCrensky in the presence of Brady if they had a lady in the car, and that he replied:

‘There was no lady in the car. We just took the cab and rode around the block to get out of your way, out of the square.’

One Damery, a police lieutenant, testified that he had a conversation with Brady the same morning and that the latter told him he had not seen Barber in three months. This witness further testified that Downey said he was not in any taxicab that night, but had attended a midnight mass.

Although the driver of the taxicab was unable to identify all of the defendants as having been in the cab with Mrs. Friedman, his testimony that the five men who were in his cab that night were the same men who got out of the cab when they were seen by Officer Holmes was evidence which, if believed, was sufficient to identify all the defendants as the men who were in the cab at the time the alleged assault was committed.

The judge instructed the jury, in part, as follows:

‘It is not necessary to prove, in order to sustain this indictment, that any of these defendants actually raped this woman; it isn't necessary to prove even that any of these defendants had sexual intercourse with the woman. If they committed an assault upon the woman, if they used any violence upon her, with the then intent of having sexual intercourse with her, whether or not that intent was carried into actual execution is of no consequence. The crime was completed when the violence was used with the intent of committing rape. * * * There is another principle to which I ought to call your attention, because it has a bearing of the utmost importance in this case, and that is this: That those may be found guilty of this offense who were present, aiding and abetting in the actual offense, whether they actually committed the offense of assault with intent to rape, or not.’

[3] There was evidence from which it could have been found that all the defendants were present and either assaulted Mrs. Friedman with intent to commit rape or aided and abetted in the commission of such assault. The instructions given were pertinent and in accordance with well-established principles. Upon all the evidence the jury were warranted in finding that an assault was made upon Mrs. Friedman with intent to have sexual intercourse with her against her consent, and that the defendants were engaged in a commonpurpose to accomplish that intent. Commonwealth v. Devereaux, 256 Mass. 387, 392, 395, 152 N. E. 380.

[4] If, as the jury could have found, some of the defendants the morning the alleged offense was committed intentionally made false statements as to material facts, such statements could be considered by the jury as showing a consciousness of guilt on the part of the defendants making them. Commonwealth v. Webster, 5 Cush. 295, 316, 52 Am. Dec. 711;Commonwealth v. Trefethen, 157 Mass. 180, 199, 200, 31 N. E. 961,24 L. R. A. 235;Commonwealth v. Devaney, 182 Mass 33, 35, 36, 64 N. E. 402;Commonwealth v. Spezzaro, 250 Mass. 454, 457, 146 N. E. 3;Commonwealth v. Baldi, 250 Mass. 528, 534, 146 N. E. 11;Commonwealth v. Lavery, 255 Mass. 327, 332, 333, 151 N. E. 466.

It follows that the motion for a directed verdict presented by each defendant was rightly denied.

Exceptions 1, 2, and 3 are based upon the objection that the questions asked by the district attorney were leading. It does not appear from an examination of these questions that they were leading. If they could be so considered no error of law appears. A trial judge in his discretion may allow leading questions to be put in direct examination. The admission of such questions is not subject to exception. Green v. Gould, 3 Allen, 465;Commonwealth v. Cline, 213 Mass. 225, 227, 100 N. E. 358;Partridge v. Middlesex & Boston Street R. Co., 221 Mass. 273, 275, 108 N. E. 918.

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