Commonwealth v. Farrell

• Decision Date: 12 April 1948
• Citation: 322 Mass. 606,78 N.E.2d 697
• Parties: COMMONWEALTH v. THOMAS FARRELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 606

78 N.E.2d 697

COMMONWEALTH v. THOMAS FARRELL.

Supreme Judicial Court of Massachusetts, Suffolk.

April 12, 1948

January 5, 7, 1948.

Present: QUA, C.

J., LUMMUS, DOLAN RONAN, & WILLIAMS, JJ.

Assault and Battery. Maiming. Practice, Criminal, Election; Charge to jury; Exceptions: whether error harmful. Election. Evidence Presumptions and burden of proof; Opinion: expert; Of reputation. Intent. Intoxication. Error, Whether error harmful. Witness, Cross-examination, Contradiction. Words "Dangerous weapon," "Maim," "Cripple," "Bodily harm."

At the trial of indictments for assault, there was no error in the denial of a motion that the Commonwealth be required to elect among sundry assaults shown by the evidence as having occurred over a period of several hours, where they formed substantially a continuous series of assaults; and it was immaterial that the continuity of the assaults was temporarily interrupted and that several means of assault were employed.

A lighted cigarette might properly be found to be a "dangerous weapon" within G. L. (Ter. Ed.) c. 265, Sections 14, 15A, where it was used to inflict serious burns upon another person.

A finding of intent to maim and of maiming on the part of an assailant within G L. (Ter. Ed.) c. 265, Section 14, was warranted by evidence that with lighted cigarettes he inflicted a large number of serious burns upon the body of another, the scars of which would be permanently visible and which impaired for a time that person's ability to walk freely and to sit at ease.

A trial judge, who fully and correctly charged the jury in general terms that the burden was on the Commonwealth to prove beyond a reasonable doubt that the defendant committed the acts charged in an indictment for assault with a dangerous weapon, was not required to charge also that the burden was on the Commonwealth to prove beyond a reasonable doubt that the complainant did not inflict on himself bodily injury shown by the evidence.

Whether or not a woman consented to intentional acts of a man in burning and cutting her was immaterial on the issue of his guilt of committing assaults on her with dangerous weapons as charged in indictments under

G. L. (Ter.

Ed.) c. 265, Sections 14, 15A.

At the trial of an indictment for assault with a dangerous weapon, there was no error in the refusal of a requested instruction to the jury that the defendant must be acquitted if, at the time he committed the assault, "he was so far intoxicated as to be unable to form a guilty intent."

A requested instruction to the jury at the trial of an indictment, that a fact alleged by the Commonwealth and denied by the defendant, if

"unusual, unaccountable, and not warranted by the circumstances," would not "be likely to obtain credit with a jury," would have been a charge on the facts and was refused properly.

Error prejudicial to the defendant at the trial of an indictment was not shown by the admission of certain testimony which, although hearsay, was immaterial to the issues on trial.

Whether or not one subjected to a series of burns over a period of several hours would have made an outcry was a matter as to which opinion testimony by experts would not have aided the jury and was excluded properly.

Reversible error in the exclusion of a time table offered as evidence by the defendant at the trial of an indictment was not shown where there was no offer to show what it was expected to prove.

The defendant at the trial of an indictment was bound by testimony as to collateral matters elicited from a witness for the Commonwealth on cross-examination, and was not entitled to introduce evidence to contradict that testimony.

At the trial of an indictment for assault on a woman, there was no error in striking out testimony by a witness for the defendant that the complainant's reputation for chastity was bad, where it appeared from cross-examination that the witness had only an indefinite and inadequate understanding of the meaning of the word chastity.

TWO INDICTMENTS, found and returned on May 17, 1946. The cases were tried before Voke, J.

H. F. Callahan, for the defendant. Edward M. Sullivan, Assistant District Attorney, for the Commonwealth.

DOLAN, J. On May 17, 1946, the defendant was indicted for assault and battery upon Helen Stavrou by means of a dangerous weapon. This indictment, No. 1811, is in two counts. The first count charges that on March 16, 1946, the defendant "did commit assault and battery upon one Helen Stavrou, by means of a certain dangerous weapon, to wit: a lighted cigarette." The second count charges that at the time aforesaid the defendant "did commit assault and battery upon one Helen Stavrou, by means of a certain dangerous weapon, to wit: a razor blade."

On May 17, 1946 the defendant was also the subject of an indictment, No. 1812, charging in a single count that he, on March 16, 1946, "with intent to maim and disfigure one Helen Stavrou, did assault the said Helen Stavrou with a certain dangerous weapon, to wit: a lighted cigarette, and, by such assault, did disfigure, cripple, and inflict serious and permanent physical injury upon the said Helen Stavrou."

At the same time two other indictments were returned against the defendant concerning certain alleged conduct of his toward said Stavrou, upon each of which the jury returned a verdict of not guilty." ^[1]

The defendant was found guilty on both counts of indictment No. 1811, and guilty on indictment No. 1812. He was sentenced to the State prison for a term of not more than five years and not less than three years on each count of indictment No. 1811, and on indictment No. 1812, the sentences to be served concurrently, but execution of the sentences was stayed in accordance with G. L. (Ter. Ed.) c. 279, Section 4, as appearing in St. 1935, c. 437, Section 3. The case comes here upon the defendant's appeals, accompanied by an assignment of errors, a summary of the record, and a transcript of the evidence, under the provisions of G. L. (Ter. Ed.) c. 278, Sections 33A-33G, as amended by St. 1939, c. 341.

The jury could have found, among others, the following facts: Helen Stavrou (hereinafter called the complainant) was eighteen years of age at the time of the events in question. While working as a vari-typist at Westover Field, an army air base in Holyoke and Chicopee, she met the defendant for the first time on February 1, 1946, when he and another officer introduced themselves to her and a companion. Thereafter she saw him quite frequently, the mess hall of which he had charge being located next to her office at the base. From time to time thereafter she met him by chance, including a meeting on March 9 on a train from Springfield to Boston. They met by arrangement the next evening, March 10, at Trinity Station, Boston, and went to a cafe located on Columbus Avenue. Later that night the complainant secured a room at a hotel at which the defendant called for her the next morning and they rode back to Springfield on the train. They went out on a "date"

Thursday evening, March 14, and the defendant asked her if she wanted to go to Boston with him on the week-end. The next day she agreed to do so. On Saturday, March 16, they took the 12:10 P.M. train to Boston. They arrived about 2:40 P.M. and first went to a package goods store in the vicinity of Park Square where a "fifth" of whisky was purchased for which the complainant paid. They then went next door to a tavern, which was located across the street from the main entrance to the Hotel Statler. The defendant told the complainant to go over to the hotel and see whether she could secure a room. She applied for a room but was unable to obtain one. When she returned and informed the defendant, he said he thought he could get one, that he knew people around there since his brother used to work there, and that he knew the "bellhops the captains." He left, taking the bottle of liquor with him, and was gone three hours. While the complainant sat alone at the tavern, she had two beers. Fifteen minutes before the defendant returned, a man came over to her and said, "Tommy has got a room, he will be over in a few minutes."

Upon the defendant's return, at 6 P.M., he gave the complainant a key, saying that it was the key to room W-619. The complainant then went to the hotel to dress to go out for the evening. The defendant had told her he would see her later. When she got to the room, her bag was there. It was an overnight bag in which, in addition to clothes, she had a safety razor. The room contained the furnishings usually found in hotel bedrooms. A bathroom led off the main room. There was a telephone in the room.

After the complainant had changed her dress, she placed her bag on the rack at the foot of the bed. At about 6:30 P.M. she heard a knock and opened the door, and the defendant came in. He locked the door and said they were not going out. He then told her to take off her clothes, and when she declined to do so he started taking them off. She tried to put the clothes on again and he tore some of her underclothes. While he was taking off her clothes, he asked if she had a razor, and she said, "No." He went to her suitcase and found the one before referred to. He took off all her clothes and threw her lengthwise on the bed. He removed the blade from the holder and said, "Don't cry or scream or make any noise or I will kill you." He then started shaving the hair around her vagina. At that time he was naked and was sitting on the edge of the bed. The complainant was struggling and trying to get up but the defendant pushed her down again. He told her not to move. He then started slashing her thighs with the razor blade. There were three or four slashes on each leg. He also...