Commonwealth v. Bouvier

• Decision Date: 12 June 1944
• Citation: 55 N.E.2d 913,316 Mass. 489
• Parties: COMMONWEALTH v. BEATRICE BOUVIER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 489

55 N.E.2d 913

COMMONWEALTH v. BEATRICE BOUVIER.

Supreme Judicial Court of Massachusetts, Hampshire.

June 12, 1944

December 6, 1943.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, RONAN, WILKINS, & SPALDING, JJ.

Homicide. Wanton or Reckless Conduct.

On evidence which at most showed that the discharge of a shotgun by a wife against the head of her husband as he lay asleep in bed causing his death, was not intentional, but that it was discharged when, after kicking aside his clothing on the floor, she hurriedly "grabbed the gun" and bumped into something as she turned to leave the room, and did not show that she knew or ought to have known that the gun was loaded, a finding was not warranted that she was guilty of that wanton or reckless conduct necessary to a conviction of manslaughter.

INDICTMENT, found and returned on February 17, 1943. The case was tried in the Superior Court before Hammond, J.

In this court the case was argued at the bar in December, 1943, before Field C.J., Donahue, Qua, Dolan, & Cox, JJ., and after the retirement of Donahue & Cox, JJ., was submitted on briefs to Lummus, Ronan, Wilkins, & Spalding, JJ.

W. F. A.

Graham, for the defendant.

J. W. Heselton, District Attorney, (H.

I. Grousbeck, Assistant District Attorney, with him,) for the Commonwealth.

DOLAN, J. The defendant, Beatrice Bouvier, was indicted on February 17 1943, for the murder of her husband, Rudolph N. Bouvier, on December 8, 1942. She was found guilty of manslaughter by the jury. The case comes before us on her appeal with assignments of error. G. L. (Ter. Ed.) c. 278, Sections 33A-33G, as amended.

The verdict of the jury makes it unnecessary, in view of the result we reach, to consider the defendant's assignments of error numbered 54 and 55 based upon the refusal of the judge to direct a verdict of not guilty of murder in the first and second degree. The consideration of the defendant's assignment of error based upon the denial of her motion for a directed verdict of not guilty of manslaughter will dispose of the case.

At the trial of the present case it was undisputed that the deceased husband of the defendant was killed instantaneously as the result of a gunshot wound inflicted as he lay asleep in his room in the house occupied by him and his wife and children, at about 2:45 A.M., and that the gun (a twelve gauge single barreled shotgun) was in the hand or hands of the defendant when discharged with the result just stated.

The testimony of the defendant would have warranted the jury in finding the following facts: On Sunday morning, December 6, 1942, the deceased went on a hunting trip with some friends. The day before he took his single barreled shotgun from the hallway in the first floor of the Bouvier house, where he usually kept it, after breaking it to see that it was not loaded. He brought it upstairs to his bedroom for the purpose of cleaning it, informing the defendant that he would not use this gun on his trip but would use a double barreled shotgun which he had borrowed from a friend. The deceased and the defendant had two sons, one eleven years of age and the other ten years of age. Immediately before his departure on the hunting trip on the day above referred to, he cautioned his wife to "Keep the kids away from upstairs." He had never given her a similar warning before. As he was leaving he kissed the defendant good-bye and asked her to wish him luck. The defendant noticed the gun in the bedroom of the deceased on two occasions on the following day, Monday, December 7, upon going into his bedroom to remove and replace sheets and pillow cases. The gun was at the right hand side of the room. The defendant did not touch the gun on either of these occasions.

There was evidence that the bedroom of the deceased was located in the rear of the house on the southeast corner of the second floor and that it was directly over the bedroom of the defendant. His bedroom was to the left of the head of a staircase. The door leading to his bedroom was located in the northerly wall in the northwest corner. It swung inward and to the left. A double bed was placed parallel to the south and north walls and the head of the bed was against the westerly wall between the bedroom and a bathroom just beyond. The distance from the left side of the bed to the door was three feet six inches. The bed was four feet six inches wide. The room itself was about thirteen by ten feet in dimensions. The defendant's version of the shooting disclosed by her testimony, which was in accordance with what she ultimately told the police before the trial, was substantially as follows: The deceased returned from the hunting trip on Monday, December 7, at about 7:30 P.M. He talked with the defendant and his children. He had left the double barreled gun, which he had borrowed, on the porch and at his request one of his sons brought it into the house. The deceased "looked through" the gun as was his custom and left it in the first floor hall. The defendant offered to prepare supper for him, but he said "never mind. I know that you are not feeling good, and I will go down street." (The defendant was an expectant mother at the time.) The deceased left the house saying that he would return "shortly after 8." At about 8:30 P.M. the defendant went to bed in her first floor bedroom. She had removed her shoes but was fully dressed otherwise. She knew that the baby was going to be born because she had "labor pains." The deceased returned to the house at about 2:30 A.M. the following day (December 8). The defendant was awake at the time and saw the deceased go into the kitchen. There was no conversation between the defendant and the deceased. The deceased sat down and took off his hunting shoes. The defendant heard him mumbling. She "mistrusted that he had been drinking." He then went upstairs to the bathroom and thence to his bedroom. The defendant heard sounds which indicated that he had gone to bed. About fifteen or twenty minutes later the defendant put on the light in the upper hallway and went upstairs to the bathroom. The door of the deceased's bedroom was open and glancing in the defendant saw him in bed. She saw the gun in the corner of the bedroom to the right of the doorway as one enters. Returning from the bathroom she looked into the deceased's bedroom and saw the gun again. The "wooden part" of the gun was against the floor. The barrel of the gun was leaning against the wall. The back of the deceased's head was resting on his pillow. He was sleeping, breathing heavily. The defendant knew that he kept "shells" in his room. The defendant "stepped into his room" a "step or two" and "went to take his gun out." She noticed "his clothes in a pile"; she kicked them aside and "took hold of the gun," and all she remembers was "I went to turn, and as I turned, I bumped something, and the gun went off, and it flew from my hands" and "I went downstairs." The defendant further testified that she "just grabbed the gun"; that she knew "his clothes were in the front somewhere . . . [she] kicked them aside . . . with . . . [her] foot"; that "at the time . . . [she] was watching him . . . Because . . . [she] didn't want to wake him up"; that she stooped over and took the gun off the floor; that when she had taken hold of it she thought that she started to turn to her left; that she thought it was then that the gun bumped against something; that she thought that it was the muzzle of the gun "that hit"; that she did not know what it hit, but "it hit something that was up at the end of the muzzle," and when it hit the gun went off and it "flew from . . . [her] hands." She further testified that she ran downstairs and that she did not intend to shoot the deceased. There was evidence that after going downstairs the defendant knocked on a pipe which ran to a basement apartment occupied by one Mrs. Hare; that the...