Commonwealth v. Brooks

• Decision Date: 25 February 1941
• Citation: 32 N.E.2d 242,308 Mass. 367
• Parties: COMMONWEALTH v. JOSEPH BROOKS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 367

32 N.E.2d 242

COMMONWEALTH v. JOSEPH BROOKS.

Supreme Judicial Court of Massachusetts, Norfolk.

February 25, 1941

February 3, 1941.

Present: FIELD, C.

J., LUMMUS, QUA COX, & RONAN, JJ.

Homicide. Words "Deliberately.

"

A verdict of guilty of murder in the first degree was warranted by evidence that the defendant, when arrested by two police officers with companions and placed in an automobile, retained possession of a revolver which he had been carrying; that later, when one of the officers was back of the automobile and the other was getting out of it, the defendant jumped up from his seat called on the second officer to drop a revolver which he had in his hand, held back his companions, folded back the front seat and leaning over it, fired twice at that officer killing him, the second shot hitting him as he was falling; and that the defendant later stated that he "would have shot" the first officer "too."

INDICTMENT, found and returned on May 27, 1940. The case was tried in the Superior Court before Dowd, J.

J. D. Smith, for the defendant. G. W. Arbuckle, Assistant District Attorney, for the Commonwealth.

QUA, J. The defendant has been convicted of the murder in the first degree of Edward F. Lee, a police officer of Milton, on May 16, 1940. Sentence of death has been imposed, and execution of the sentence has been stayed in accordance with G. L (Ter. Ed.) c. 279, Section 4, as amended by St. 1935, c. 437, Section 3, and the record on appeal has been transmitted to us in accordance with G. L. (Ter. Ed.) c. 278, Section 33E, as amended by St. 1939, c. 341. We have not been asked to order a new trial upon any of the grounds upon which we are specifically authorized to do so by the 1939 amendment, and upon consideration of the whole case we are satisfied that justice does not require the exercise of the additional powers conferred upon us by that amendment. We have considered all questions of law fairly raised. The only question argued by the defendant upon his assignments of error and the only question upon which he seeks our decision is whether there was any evidence that the murder was committed with the "deliberately premeditated malice aforethought" which will support a conviction in the first degree under G. L. (Ter. Ed.) c. 265, Section 1.

There was ample evidence upon which the jury could find these facts: Late in the evening of May 15 the defendant and one Papineau obtained possession of an automobile, one Zukauskis joined them, and all three began riding about in the automobile. The defendant was carrying a revolver. He announced to his companions that he was going to make "a couple of hundred dollars" that night robbing gasoline stations, "or know the reason why." Between one o'clock and two o'clock on the morning of the sixteenth the three men were arrested by officers Slack and Lee for stealing the automobile. The officers "frisked" the three men, but for some reason failed to find the defendant's revolver. The prisoners were then placed in the rear seat of a police "prowl car." The defendant sat in the middle. Papineau and Zukauskis sat at the ends. Officer Slack drove while officer Lee sat at his right on the front seat with his body turned to the left, so that he was able to cover the prisoners with his revolver. Upon arrival in front of the Milton police station Officer Slack got out of the car on its left side and started to go around the back of it. At the same time Officer Lee opened the door on his side and backed out of the car to the sidewalk. At that moment the defendant jumped up from the rear...