Commonwealth v. Dies

• Decision Date: 09 April 1924
• Parties: COMMONWEALTH v. DIES. SAME v. ANDREWS. SAME v. GOMES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

248 Mass. 482

143 N.E. 506

COMMONWEALTH

v.DIES.

SAME

v.ANDREWS.

SAME

v.GOMES.^*

Supreme Judicial Court of Massachusetts, Barnstable.

April 9, 1924.

Exceptions from Superior Court, Barnstable County; H. T. Lummus, Judge.

John Dies, Joseph Andrews, and Benjamin Gomes were found guilty of rape, and bring exceptions. Exceptions overruled.W. H. Lewis and I. H. Fox, both of Boston, for defendant John dies.

J. L. Sheehan, of Boston, for defendant Jos, Andrews.

E. B. Jourdain, of New Bedford, for defendant Benj. Gomes.

S. P. Hall, Dist. Atty., of Taunton, for the Commonwealth.

PIERCE, J.

The three defendants were tried together on separate indictments, which charged that the defendant ‘did assault [G.B.], with the intent to commit rape upon her; and her, the [G.B.], did commit rape upon’ in said county of Barnstable on August 16, 1921.

The defendant Andrews seasonably filed the following plea:

‘And now comes Joseph Andrews and says that at the time of the commission of the alleged offenses, he was under the age of seventeen years, a juvenile, and the court has no jurisdiction of the person of the defendant nor has it any jurisdiction of the subject-matter contained in the said indictment in so far as it relates to him, the said Joseph Andrews.’

‘It was admitted and agreed at the hearing on the plea that the said Joseph Andrews was sixteen years of age on the date of the alleged offense but was seventeen years of age at the time of making this plea and motion.’

The judge after a hearing overruled the plea and the defendant duly excepted.

The ruling was indisputably right. The statutes upon which the defendant relies (St. 1906, c. 413, § 1; St. 1917, c. 326, § 2, now G. L. c. 119, § 52) for the purposes of the act relating to delinquent children defines a ‘delinquent child’ to be ‘a child between seven and seventeen who violates any city ordinance or town by-law or commits an offense not punishable by death or by imprisonment for life.’ The crime of rape is punishable ‘by imprisonment in the state prison for life or for any term of years.’ R. L. c. 207, § 22; G. L. c. 265, § 22. As a consequence it follows that it is wholly immaterial that Joseph Andrews was sixteen years of age when the alleged offense was committed.

At the trial, lasting two weeks, all three defendants testified as well as witnesses in their behalf. And each defendant denied the commission of the alleged crime. There were no exceptions to the charge of the judge; no requests for instructions,which were refused; and no requests for a directed verdict of not guilty. The defendants were each found guilty and each sentenced to the state prison. ‘For convenience and with the consent of all parties, all matters excepted to by all the defendants are placed in this bill of exceptions.’ The jury were given a view of the place and locality where the offense is alleged to have been committed.

[2] The district attorney in his opening statement of the facts which he expected the evidence would establish, among other things, said to the jury:

‘On the 15th day of August, the same night that Miss [G.B.] and Eldridge left her home, a Mr. Corbett of Sagamore attended the pictrures at the Colonial Theater, or the entertainment, whether it was pictures or not I do not know. He drove up there in a Ford car, and he left the Ford car at the side of the Colonial Theater on what is known as Wareham avenue. You will recall yesterday after we had gone down to Onset and we turned that we went around the corner of the Colonial Theater and out back onto the state road across the railroad track. He left his automobile shortly after 9 o'clock near the rear or side entrance to that Colonial Theater. That automobile was a Ford automobile. That automobile was found a few days later in what we call, or yesterday spoke of-I think was spoken of on the view-as the old Sandwich road, and that old Sandwich road is opposite, across where the lights were pointed out to you, from the village we first stopped at known as Jungletown, where each of these three defendants lived.’

At this juncture counsel for the defendants, speaking through Mr. Lewis, interrupted the district attorney and addressed the judge as follows:

‘If your honor will pardon me, if the district attorney does not intend to connect these defendants with this particular Ford car belonging to Mr. Corbett, I desire to save my rights to his opening up on evidence which he may not connect up on.’

And speaking through Mr. Sheehan said, ‘That is the whole original objection and I wish to save an exception,’ thereby referring to an objection before taken to a statement of the district attorney in reference to a motor machine which he alleged ‘was despoiled and robbed of gasoline and tools and so forth.’ To these criticisms the court said, ‘I assume that the district attorney does intend to connect it.’ The district attorney then said, ‘I hope by an abundance of evidence which you well know.’ The defendants, to this statement of the district attorney, at once excepted. The district attorney then said ‘I will withdraw that ‘well known.” The defendants still excepting, the judge said, ‘I don't think it was proper for the district attorney to make any assertion as to what counsel for the defendants knew or did not know, and I instruct the jury to disregard it. As to the matter in chief, of course, if the district attorney can connect it, as he says he can, he is entitled to open. * * *’ To this instruction to the jury the defendant through Mr. Sheehan replied, ‘As the moral harm is done * * * and we are prejudiced, I want to hold my exception.’ In the circumstances above recited it is not at all clear that the words ‘which you well know’ were improper in the sense they called for a rebuke from the court, or required that the jury should be instructed to disregard them. However that may be, it is plain the defendants could suffer no harm from the hasty remark, after the disclaimer of the district attorney and the forcible, peremptory order of the judge to the jury.

[3] G.B., the woman alleged to have been raped by the defendants, was a witness for the commonwealth, and, while testifying, collapsed, fainted or had a ‘spell’ twenty-one times; eight of these on her direct examination. At such times the witness was unable to continue and was removed from the courtroom. Several times the defendants moved that the case be taken from the jury and a mistrial ordered by reason of her physical and mental condition and because they were prejudiced. On one occasion the judge said, in reference to these incidents:

‘The witness has either fainted or been taken with some form of nervous disturbance a number of times while testifying, she having begun to testify about 10:45 and it now being 2:20 and has just now suffered the same thing, and on one occasion after the happening of such an occurrence she made some moaning or outcry in the corridor adjoining the courtroom. In view of these occurrences, counsel for the several defendants ask the court to declare a mistrial. Do you object to it?’

The district attorney replied, ‘I object to it.’ The judge then said, ‘The court denies the motion, and the defendants severally except to such denial.’ It is the contention of the defendants that the fainting spells were or might be found by the judge to be such a disturbing influence upon the minds of the jurors as was calculated to affect their verdict through sympathy for the witness or prejudice against the defendants; and that the judge shirked the exercise of a sound judicial discretion and put the question ‘up to the district attorney to say whether he should declare a mistrial or not.’ The action of the judge in asking the district attorney if he objected to the motion or request for a declaration of mistrial manifestly does not even tend to establish the charge that the judge did not exercise his discretion or do else than speak the will of the district attorney. It is evident there is nothing in the fact that the witness often fainted under examination, or in the reported action of the judge in reference thereto, which gives any countenance to the argument that the judge failed in any respect to exercise his individual judicial discretion in refusing the motion to declare a mistrial. Indeed if the defendants' contention were correct these defendants might go untried for the offense of which they were found guilty, since G.B. might never be able to go through an examination and crossexamination without fainting. The exception of the several defendants in this regard is overruled.

[5] The next exceptions argued are to the questions of the district attorney to the witness G.B., ‘How did he assault you, Miss [G.B.]? After he was on top of you, how did he assault you; what part of his person, if any part of his person, came in contact with your person?’ These questions, though leading, were properly allowed to be asked in the discretion of the judge. Commonwealth v. Cline, 213 Mass. 225, 227, 100 N. E. 358;Commonwealth v. Turner, 224 Mass. 229, 237, 238, 112 N. E. 864. The remark of the judge to an exception by the defendants' counsel, ‘Yes; but it would be impossible for the district attorney to put it more fairly, I think, than that,’ culd not have harmed the defendants. These exceptions were overruled.

The exceptions saved to the question, ‘Did either of these men have relations with you by your consent?’ and to the question ‘Were you willing or unwilling for these men to do what they did?’ must be overruled. The state of mind of the witness when the alleged assaults were made upon her was relevant in the proof of a material and all-important fact. Commonwealth v. Woodward, 102 Mass. 155, 161;Brown v. State, 127 Wis. 193, 106 N. W. 536,7 Ann. Cas. 258;Jones v. State, 104 Ala. 30, 16 South. 135.

[7] The exception saved to the questions, ‘Did you receive a visit from a physician?’ ‘When?’ ‘Who was the physician?’ ‘Was he the family physician?’...