Commonwealth v. Brewer

• Citation: 42 N.E. 92,164 Mass. 577
• Parties: COMMONWEALTH v. BREWER.
• Decision Date: 27 November 1895
• Court: United States State Supreme Judicial Court of Massachusetts

164 Mass. 577
42 N.E. 92

COMMONWEALTH
v.
BREWER.

Supreme Judicial Court of Massachusetts, Essex.

Nov. 27, 1895.

Exceptions from superior court, Essex county; F.A. Gaskill, Judge.

Annie A.M. Brewer was convicted of manslaughter, and excepts. Exceptions overruled.

The defendant was charged by indictment with the crime of manslaughter of Gideon W. Lattimer on December 13, 1894, at Lynn, in said county. The following facts were not in dispute between the commonwealth and the accused:Lattimer was a single man, and the defendant was a single woman. For some months prior to December 13, 1891, an engagement of marriage had existed between Lattimer and the defendant, and there had been illicit relations between them. On the morning of December 13th Lattimer called at a house in Lynn where the defendant lived, met her at the exterior door, and went with her to a chamber in the house, where they were alone for a short time. A revolver which had formerly belonged to Lattimer was in a bureau drawer in said chamber, in the possession of the defendant. During the interview between them, three shots were discharged from a revolver, which was there held in the defendant's hands, the first of which inflicted a mortal wound in the abdomen of Lattimer. Of the other two shots, one took effect in the shoulder of Lattimer, and the other was buried in a panel of the outside door of the house. Lattimer died of the mortal wound on the 15th day of December, 1894, at about 9 o'clock in the evening. The commonwealth contended that each of the three shots was fired by the defendant with the intention of inflicting injury upon Lattimer, and that the account given by Lattimer in his dying declaration, hereinafter contained, was substantially true. The defendant claimed, and testified in her own behalf, that Lattimer assaulted her, threw her on a bed, and was choking her, when she pulled the revolver, which she had previously given to him in the room, from his pocket, and took it into her hand, for the purpose of protecting herself from violence, and that in the struggle the shot which inflicted the mortal wound and the second shot were accidentally discharged, and that the third shot was fired by her in the belief that it was necessary for her own defense. The defendant testified, without objection, that between July and November, 1894, she was twice pregnant by Lattimer. She was then asked by her counsel the following question: “In October did you have a miscarriage?” which, upon objection by the commonwealth, was excluded, and the defendant duly excepted. The defendant subsequently was permitted to testify, without objection, that on the day of the shooting she was suffering from the effects of a miscarriage, and was weakened thereby. There was testimony in behalf of the defendant in respect to the strength and physical appearance of Lattimer and his characteristics of temper. The defendant testified that on December 13th, when Lattimer called upon her, he was under the influence of liquor, and that she smelled liquor in his breath. The defendant called a witness, and asked him the following question: “Was there a change in his (that is, Lattimer's) habits with reference to drinking from on or about October 20th to December 13th?” Upon objection by the commonwealth,

[42 N.E. 93]

this question was excluded, and the defendant duly excepted. The defendant was permitted to introduce testimony upon the condition of Lattimer with respect to drink upon the day of the homicide. The defendant called a witness, who testified that she was at the head of a lying-in hospital in Lynn, and that in the latter part of November, 1894, the defendant called at that hospital with a man unknown to the witness. The witness was then asked the following question: “Did you know from any talk with her that she was in a family way?” Upon objection by the commonwealth the question was excluded, and the defendant duly excepted. The commonwealth did not attempt to controvert the defendant's claim that she was pregnant by Lattimer. The government introduced testimony that at about 4 o'clock in the afternoon of December 15th the following conversation occurred between Lattimer and the persons hereinafter named: Dr....