Commonwealth v. Bartolini

• Decision Date: 28 February 1938
• Citation: 13 N.E.2d 382,299 Mass. 503
• Parties: COMMONWEALTH v. OSCAR BARTOLINI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 503

13 N.E.2d 382

COMMONWEALTH v. OSCAR BARTOLINI.

Supreme Judicial Court of Massachusetts, Norfolk.

February 28, 1938

February 7, 1938.

Present: RUGG, C.

J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.

Practice, Criminal Disclosure of evidence of Commonwealth, Material witness Discretionary control of evidence, Requests, rulings and instructions, Charge to jury. Constitutional Law, Due process of law. Pleading, Criminal, Bill of particulars. Evidence Relevancy; Competency; Of state of mind; Admissions; Of identity; Foot prints; Opinion: expert; Presumptions and burden of proof. Homicide.

No error of law nor deprivation of due process appeared in the discretionary denial of motions made before trial by the defendant in a murder case for leave to his counsel to examine certain documents and objects expected to be relied on by the Commonwealth, and the evidence and exhibits before the grand jury, where no prejudice to the defendant in the preparation of his defence appeared. "Due process" does not require that a discretionary privilege be granted as of right.

On an indictment for murder in the statutory form, with an order for a bill of particulars in response to which the Commonwealth specified certain particulars and stated its inability to specify further, the trial judge later was not obliged either to order further specification of particulars or to quash the indictment.

It was not sufficient ground for a plea in bar to an indictment for murder, or competent evidence at the trial, that the defendant had been held as a material witness under a complaint in a district court charging "John

Doe" as the murderer.

At the trial of an indictment for murdering a woman, it was proper to admit, as showing the defendant's state of mind toward her, evidence that he recently had assaulted her where the admission was accompanied by an instruction to the jury that it was not proof of his guilt of the crime charged.

At the trial of an indictment, the form of a question eliciting from a witness for the Commonwealth testimony as to admissions made by the defendant was immaterial and harmless on the record.

At the trial of an indictment for murder, evidence that materials found in the defendant's house were like those wrapped about dismembered parts of the body of the murdered person was admissible as identifying the defendant as the murderer.

At the trial of an indictment for murder, with evidence that the body of the deceased had been dismembered in a particular way, further evidence that the defendant had the tools and experience required to perform such dismemberment was admissible.

It was within the discretion of the judge at the trial of an indictment to exclude certain evidence merely cumulative and tending to open collateral issues.

An expert witness properly was allowed to testify at the trial of an indictment for murder that prints of a naked foot at the house of the deceased were made by the same person as prints made elsewhere and identified as those of the defendant.

At the trial of an indictment, the judge having charged the jury that they could consider the demeanor of the defendant while testifying, it was not error to refuse a request in general terms for an instruction that his demeanor throughout the trial should be considered.

At the trial of an indictment for murder, the judge having given full instructions as to the proof required for a conviction, it was not error to refuse to charge further that the jury need not find the defendant guilty even though they found that he had "taken part in" dismembering the body of the deceased.

At the trial of an indictment for murder, the judge properly refused to instruct the jury that, in considering whether a cleaver introduced in evidence was the weapon actually used, they could also consider a bill of particulars filed nine months earlier containing a statement that the

Commonwealth was then unable to give a true description of the weapon used.

At the trial of an indictment for murder, the judge after fully and accurately instructing the jury as to the burden of proof and the degree of proof necessary to convict, was not required to instruct in terms requested by the defendant.

A requested instruction that there was no evidence of motive was properly refused at the trial of an indictment for murder, both because there was sufficient evidence thereof and because the Commonwealth was not obliged to prove a motive.

Repeated blows delivered from different angles with "extreme violence" on the head of one killed thereby was evidence of "deliberately premeditated malice aforethought" and of "extreme atrocity or cruelty" and warranted a conviction of murder in the first degree under G. L. (Ter. Ed.) c. 265,

Section 1.

INDICTMENT for murder, found and returned in the Superior Court on October 30, 1936.

A verdict of guilty in the first degree was returned before Leary, J. The defendant filed an appeal with assignments of error.

G. B. Lourie, (J.

R. Zottoli with him,) for the defendant.

E. R. Dewing, District Attorney, (G.

W. Arbuckle, Assistant District Attorney, with him,) for the Commonwealth.

QUA, J. On October 30, 1936, the defendant was indicted for the murder of Grayce M. Asquith at Weymouth on September 20, 1936. He was found guilty in the first degree on September 22, 1937. Sentence of death was imposed, and stay of execution was ordered on December 2, 1937.

There was evidence that on October 5, 1936, the dissevered legs of a woman were discovered at different places in the water of Boston Harbor. On October 23 a woman's head was found at still another place in the harbor. One leg was wrapped in burlap. The other leg was wrapped in a piece of green window shade and enclosed in a burlap bag. The head was wrapped in a green window shade. The questions argued upon this appeal do not require a recital of the voluminous evidence tending to identify the head and legs as portions of the body of Grayce M. Asquith or pointing toward the defendant as the person who had killed her and dismembered her body. An important part of that evidence consisted of certain finger prints and of foot prints of bare feet identified as those of the defendant impressed upon diluted human blood which had been mopped but not wholly removed from the linoleum floor of the bathroom in the cottage in which the deceased had lived, and where it could have been found that she had been killed and her body cut in pieces.

1. On November 10, 1936, the defendant filed a motion that the Commonwealth be required to furnish him photographic "copies" of the "premises" of the deceased, of finger prints of the defendant and of one Lyons, of finger prints and foot prints found on the premises of the deceased, and of the parts of the body, copies of the report of the medical examiner relative to the parts of the body and of the evidence presented to the grand jury, and the names and addresses of witnesses testifying before the grand jury. In the same motion the defendant asked that permission be given to his counsel in company with necessary experts to examine the premises, the parts of the body, the material in which they were wrapped, the report of the medical examiner, all property and other materials taken by the Commonwealth from the premises occupied by the deceased and from the home of the defendant, the "minutes" of the grand jury, and all exhibits introduced before them. The judge who heard and denied this motion on December 10, 1936, stated that he knew of no authority "for the court's ordering the prosecutor to do anything of the nature that is called for here, at this stage of the case" (underlining appears in the "Transcript of the Evidence"); that when the objects to which the motion referred had been put in evidence they would come within the power of the court; and that fairness might then require the court to allow an examination by experts, although that might mean the suspension of the trial for a time.

On April 2, 1937, the defendant filed a second motion that permission be given to his counsel, in company with necessary experts, to examine within a reasonable time before the commencement of the trial, the parts of the body and the material in which they had been wrapped, the report of the medical examiner and all property and other materials taken by the Commonwealth from the premises occupied by the deceased and from the premises of the defendant, and all finger prints taken by the Commonwealth at the premises of the deceased. This motion was denied after hearing by another judge on July 29, 1937. The evidence at that hearing, if any was offered, is not included in the "transcript of the evidence" required by G. L. (Ter. Ed.) c. 278, Section 33E, to be transmitted to this court as a part of the record on appeal. So far as appears no rulings of law were requested or made.

On September 1 1937, the defendant filed a third motion that permission be given to his counsel, in company with necessary experts, to examine the same objects and document mentioned in the second motion. This motion was heard at the opening of the trial before a third judge. In denying the motion the judge stated that he would give counsel for the defendant an opportunity to examine the articles and document mentioned in the motion when they were presented in court and to make "such a study of them as is reasonably necessary." He added that he would see that counsel for the defendant should have "ample opportunity to inspect and examine any and all articles or documents, or anything else that is offered in evidence." So far as appears all of the tangible objects to which the motions refer were offered in evidence, except the parts of the body, and there is nothing to show that the...