Commonwealth v. Fecl

• Decision Date: 01 June 1920
• Citation: 127 N.E. 602,235 Mass. 562
• Parties: COMMONWEALTH v. FECL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 562

127 N.E. 602

COMMONWEALTH

v.FECL et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 1, 1920.

Exceptions from Superior Court, Middlesex County; Dubuque, Judge.

Francisco Feci was convicted of murder, and he excepts. Exceptions overruled.

Nathan A. Tufts, Dist. Atty., of Waltham, and Hermann A. Wagner, Asst., Dist. Atty., of Boston, for the Commonwealth.

Meyer J. Sawyer, of Boston (Philip Mansfield, of Boston, of counsel), for defendant.

CROSBY, J.

The defendant was indicted for the murder of Louis Fred Soulia at Billerica on October 31, 1918. Other indictments for the same offense were returned against Joseph Cordio and Luigi Feci. The indictments against Francisco Feci and Cordio were fried together. The jury returned a verdict of guilty of murder in the first degree against the defendant Francisco Feci (who will hereafter be referred to as the defendant), and of not guilty against Cordio; Luigi Feci, the other defendant, having absconded and not having been apprehended, was not tried.

The evidence introduced by the commonwealth tended to show that Soulia, the deceased, lived alone in a small house on a country road in a sparsely settled district, and was employed by the Boston & Maine Railroad in its scrap reclamation department; that near his house there was a path crossing a tract of land covered with scrub trees and undergrowth and leading past a swampy place to the main line tracks of the railroad, after crossing which a person could go to the car shops over land of the railroad; that Soulia frequently used this path in going to and from his work; that Cordio owned a house not far from that of Soulia on the same road; that a path from near Cordio's house joined the one above described; that for some time before the alleged murder Cordio and the Fecis (the latter being brothers) had been employed by a contractor in making a culvert on land of the railroad near the reclamation department; that during the time the defendants were working on the culvert there were thefts of brass journal boxes and other junk from the reclamation department; that on the morning of Tuesday October 29, 1918, between 6 and 7 o'clock one Perkins, a junk dealer, went with Cordio, the defendant, and another man, from Cordio's house down the path joining the one leading to the railroad tracks, and down that to a side path which led to a hole dug in the edge of the swamp not far distant from the tracks; that the three men showed Perkins a lot of brass journal boxes and asked him to buy them; that he refused and they all went away; that at about 9 o'clock on the same morning Soulia and one Brown (foreman of the reclamátion department) in consequence of a conversation between them walked from the car shops to the railroad tracks and started to go up the path to Soulia's house; that, when they were about 40 feet from the tracks along the path, Brown saw the defendant cross the path ahead of him with a shotgun in his hand; that Brown shouted to him and waved his hand; that the defendant looked at them and then ran away; that Soulia led Brown to a side path near where the defendant had appeared, and they went down it a short distance and came to a hole dug in the edge of the swamp in which Brown saw a large quantity of brass junk, which he identified as being the property of the railroad; that on the following Thursday afternoon Soulia finished his work in the car shops at 20 minutes before 6; that at about 7 o'clock that night shots and screams were heard coming from the direction of the path above described; that Soulia did not report for work thereafter, and on the following Monday search was made and a pool of blood was found near a bush beside the path; that leading from the pool of blood were marks such as could be made by dragging a heavy body; that some distance from the pool of blood the hat, dinner pail and spectacles of Soulia were found buried in a shallow hole; that still further along the marks apparently made by dragging something over the ground the dead body of Soulia was found buried in a shallow grave; that there were footprints in the sand near the grave, into one of which a bloody shoe taken from the defendant at the time of his arrest exactly fitted; that under the piazza of the house where the defendant lived was found a shovel with sand on it like that at the grave, and in a swampy place back of Cordio's barn an axe and a piece of rope, said to have blood stains on them; that there were ashes on the grate of the stove in the house, containing metal buttons and ashes that had been clothing; that there were three bullet wounds in Soulia's head, all of which entered his right eye socket; that two of the bullets were extracted from his skull and were of the same caliber as those found in a loaded revolver taken from a coat belonging to the defendant just before his arrest (although he testified that the coat and revolver belonged to his brother Luigi); that the other bullet was not found; that the revolver contained six chambers; that in three of them there was an accumlation of grease and dirt but no cartridges; that there was no grease or dirt in the other three chambers, which were successive in the order of rotation of the cylinder; that the bullets found in the body of Soulia at the autopsy were of a caliber, size and manufacture adapted to and capable of being fired from the revolver.

There was further evidence tending to show that the defendant killed the deceased; also evidence that there were about 20 incised wounds or cuts on different parts of the body of the deceased of various sizes and depths, and nothing about them taken as a whole was consistent with their having been self-inflicted; that death was the result of all the wounds, no one of them alone would have been immediately fatal; and that death was caused by loss of blood and did not instantaneously follow any one wound.

1. The defendant excepted to the admission in evidence of the testimony of Brown (1) that he had a talk at the car shop with Soulia on the morning of October 29; (2) that in consequence of that talk he and Soulia went to the path and saw the defendant, and the brass in the hole, as previously described; (3) that he (Brown) recognized on the brass castings certain identification marks showing that they were the property of the railroad; and (4) that before that date brass junk had been wrongfully taken from the railroad from time to time.

It was the contention of the commonwealth that the deceased was murdered either for revenge because of his having revealed the hiding place of the stolen junk and the connection of the defendant and Cordio therewith, or for the purpose of removing a probable witness against them in the event of their being prosecuted for stealing the property or concealing it, or for both such reasons. When this evidence was offered, the district attorney stated in the presence and hearing of the jury that it was offered for the purpose of showing a motive for the crime on the part of the defendant.

Although motive is no part of the offense charged and the commonwealthis not obliged in any case to prove a motive for murder, yet evidence tending to show a motive is always competent because, if clearly shown, it may help to confirm the conclusion reached from all the other evidence that the accused has committed the offense charged. Commonwealth v. Abbott, 130 Mass. 472;Commonwealth v. Howard, 205 Mass. 128, 91 N. E. 397;Commonwealth v. Rivet, 205 Mass. 464, 91 N. E. 877;Commonwealth v. Richmond, 207 Mass. 240, 93 N. E. 816,20 Ann. Cas. 1269.

[3][5] The evidence that Brown had a conversation with the deceased referred to a fact and was clearly competent; the conversation itself was neither asked for nor given, therefore the rule against the admission of hearsay evidence was not violated. Commonwealth v. Moulton, 4 Gray, 39;Sampson v. Sampson, 223 Mass. 451, 459, 112 N. E. 84. The evidence that in consequence of the conversation Brown and Soulia went to the path and saw the defendant and observed the brass in the hole, that Brown recognized the property as that of the railroad, and that brass junk had been wrongfully taken therefrom at different times, all was competent and material as having a tendency to show that the brass so secreted was stolen property. A man is not to be convicted of a criminal offense by evidence that he has previously committed other crimes wholly disconnected with that for which he is placed on trial, and such evidence must be excluded; yet if it be shown that the defendant has committed other offenses, the commission of which has a tendency to establish the fact in controversy, such evidence is plainly admissible. Commonwealth v. Shepard, 1 Allen, 575;Commonwealth v. Choate, 105 Mass. 451, 458,Commonwealth v. Jackson, 132 Mass. 16;Commonwealth v. Johnson, 199 Mass. 55, 59, 85 N. E. 188;Commonwealth v. Dow, 217 Mass. 473, 480, 105 N. E. 995;People v. Sharp, 107 N. Y. 427, 476,14 N. E. 319,1 Am. St. Rep. 851;Moore v. United States, 150 U. S. 57, 14 Sup. Ct. 26, 37 L. Ed. 996. The defendant contends that there was nothing to show that the brass castings were stolen by him or...