Commonwealth v. Capalbo

Decision Date25 February 1941
Citation32 N.E.2d 225,308 Mass. 376
PartiesCOMMONWEALTH v. ANTHONY CAPALBO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

February 5, 1941.

Present: FIELD, C.

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

Evidence, Opinion expert; Competency; Cumulative. Witness, Expert. Practice Criminal, Exceptions: whether error harmful; New trial. Error, Whether harmful.

The manner in which a person would fall when shot and where the blood from the bullet wound would be deposited were proper subjects of expert testimony by a medical examiner.

Evidence warranted a finding that a police chemist was qualified to testify as an expert on the effect which alcohol, found by him in parts of the body of a deceased person, would have had on the deceased; and the effect of the alcohol was a proper subject of expert testimony.

No reversible error at a criminal trial was shown by the admission of certain testimony, contended by the defendant to have been highly prejudicial, which the judge later ruled did not have a proper foundation, which he thereupon instructed the jury to disregard, and which was merely cumulative of other testimony previously admitted without objection.

No abuse of discretion appeared in the denial of a motion for a new trial in a criminal case, based on evidence to impeach the credibility of a witness for the Commonwealth and on alleged newly discovered evidence upon a material issue.

INDICTMENT, found and returned on June 21, 1938. The case was tried in the Superior Court before Collins, J., and in this court was submitted on briefs.

H. F. Callahan, for the defendant.

W. J. Foley District Attorney, & E.

M. Sullivan, Assistant District Attorney, for the Commonwealth.

RONAN, J. The defendant was tried and convicted in the Superior Court upon an indictment charging him with the commission of murder in the second degree and upon an indictment charging him with carrying a pistol without a license. The trial was conducted in accordance with G. L. (Ter. Ed.) c. 278, Sections 33A-33G inclusive. The defendant now raises no question as to his conviction upon the second indictment. His contentions are confined to the first indictment, and that case is here by appeal, with a summary of the record, a transcript of the evidence, and an assignment of errors.

The deceased, Joseph Perotta, went into a liquor saloon, located on the corner of Winnisimmet and Williams streets, in Chelsea, at about nine o'clock on Sunday evening, May 22, 1938, where he met one James Giordano with whom he had spent several hours on the afternoon of that day in playing a bowling game. Both had drunk a considerable quantity of beer. While in the saloon an argument ensued between Perotta and Giordano. One Rose Capalbo, the daughter of the defendant, while passing the saloon observed that such an argument was taking place and went home and informed her father, the defendant. The latter took a loaded revolver from a bureau drawer and went to the saloon. The defendant told Giordano, who lived with him, to go home and also requested Perotta to go home. The defendant contends that Perotta then made an insulting remark, passed out the side door of the saloon to the street and invited the defendant to come outside, and that Perotta, with a knife in his right hand, commenced to climb the three steps that led from the street to this doorway, making two or three lunges with the knife as he approached the defendant who was standing near the door, when the latter pulled out the revolver from his pocket and shot Perotta, the bullet entering his forehead between the eyebrows and taking a downward course, finally lodging between the back of the skull and the scalp. There was other evidence that the shooting occurred inside the saloon. Perotta slumped down when he was shot. He then was taken to Gilman Place, in the rear of the barroom. There he was discovered by the police who took him to the hospital. He died within four hours. The defendant left the premises immediately after the homicide and was at large until he appeared at the Chelsea police station on the following Wednesday.

It is undisputed that the fatal shot was fired by the defendant and that Perotta died as a result of this bullet wound, but the defendant contends that he shot in self defence as Perotta lunged at him with a knife in his right hand. The medical examiner, who performed an autopsy and described the course of the bullet and the resulting damage to the brain, testified that the bullet had destroyed a large part of the motor tract and that the immediate effect upon the victim was an instant collapse -- inability to walk or move or stand, which would be followed by a flaccid collapse and then a flaccid paralysis which would continue until death; that anything that he held in his hand would drop as the victim would relax and "would crumple"; that the victim would be unable to put his hand into his pocket after he was shot and that, at the time of the shooting, the revolver was held only a matter of inches away from Perotta's face. There was evidence from various police officers who removed Perotta from Gilman Place that he was unconscious; that he had his right hand about one half way in his trousers pocket; that there was a dollar bill in this hand and that his right hand remained in this position until they searched his clothing at the hospital. Some of these officers also testified that there was no blood upon Perotta's right hand. The police made a search of the premises and the adjoining sidewalk and Gilman Place. They discovered upon the Williams Street sidewalk the shell from which the bullet was shot and marks which indicated that the victim had been dragged from the doorway on Williams Street to Gilman Place where he was finally left upon the ground, but they found no knife although they were not then especially looking for such an object. A woman who was in this saloon at the time of the shooting testified that a short time after the shooting she found a knife on the sidewalk near the Williams Street doorway and that it was taken away from her by one Fraser who was employed in the saloon. She testified when the knife was shown to her at the trial that this was a knife that she had seen in the kitchen of the saloon for some time previous to the shooting. There was also evidence that the knife, which had been introduced as an exhibit, had been found by one Basso on Winnisimmet Street in front of premises that adjoined the saloon, but there was no evidence that Perotta travelled to Winnisimmet Street after he was shot or that he ever took a step after the shooting. Whether this knife was owned by Perotta was the subject of a sharp conflict in the testimony.

The Commonwealth claims that the contention of the defendant that he shot in self defence was a fabrication. It points out that there was no evidence that the defendant had been injured although his revolver was only a matter of inches from Perotta's face when he was shot, that if Perotta had a knife it would have dropped from his grasp when he was shot and would have been found there at once after his body had been removed to Gilman Place. The position of the right hand in the trousers pocket, it contends, shows that, at the time he was shot, Perotta was grasping a dollar bill in this pocket, and that he could not have raised his hand out of the pocket after he was shot, and, furthermore, there was no blood upon the right hand. The weight to be given to these contentions was to be determined by the jury. Commonwealth v. Crowley, 168 Mass. 121 . Commonwealth v. Peterson, 257 Mass. 473 . Commonwealth v. Trippi, 268 Mass. 227 .

The second and third assignments of error are to the admission of testimony of Dr. Brickley, the medical examiner, as to the manner in which the deceased would drop when shot, and where the blood from the bullet wound would be deposited. The ground of objection urged is that these matters were not the subject of expert testimony. The facts upon which the questions purported to be based appeared in the testimony. The witness had performed an autopsy and knew from actual observations what parts of the brain had been lacerated by the bullet and in what direction and where the blood caused by the wound had flowed and where in the body it had been deposited. He also testified as to the amount of blood that would be released by the wound and the rate of its escape. The evidence was competent. The evidence excepted to "related to matters outside the range of common experience" and "pertained to an exact knowledge of the anatomy and the vital organs of a human body and the course of projectiles through it." Commonwealth v. Festo, 251 Mass. 275 , 280. Commonwealth v. Spiropoulos, 208 Mass. 71 , 72. Commonwealth v. Dorr, 216 Mass. 314 , 317. Commonwealth v. Russ, 232 Mass. 58 , 78. Commonwealth v. Snyder, 282 Mass. 401 , 419. Commonwealth v. Mabey, 299 Mass. 96.

The fifth assignment of error is to the admission of the testimony of the witness Stratton, who had examined and determined the percentage of alcohol present in the brain, blood and stomach contents of Perotta, that the amount of alcohol found would cause the average normal man of forty-nine years of age to be definitely under the influence of liquor and to manifest some unsteadiness of motion. The witness, since his graduation from college in 1928, had been engaged in biological and chemical research, and since 1934 had been the chemist of the Boston police department working in conjunction with the medical examiners and their associates. He had worked on more than one hundred forty cases for the Boston police department in matters involving blood stains and fibres and various problems relating to toxicology. On many occasions he has qualified and...

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