Commonwealth v. Gettigan

• Decision Date: 31 May 1925
• Citation: 148 N.E. 113,252 Mass. 450
• Parties: COMMONWEALTH v. GETTIGAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 450

148 N.E. 113

COMMONWEALTH

v.GETTIGAN.

Supreme Judicial Court of Massachusetts, Suffolk.

May, 1925.

Exceptions and Appeal from Supreior Court, Suffolk County.

J. Thomas Gettigan was convicted of manslaughter, and he excepts and appeals from an order denying a motion to set aside verdict or for a new trial. Exceptions overruled, and order denying motion affirmed.

Defendant's exceptions Nos. 4, 6, 9, 14, 17-24, inclusive, and 27-29, inclusive, are as follows:

Exception 4. The witness Lindsay and the witness John P. McDonald, a detective employed by Richardson for investigations in connection with the so-called ‘solicit to commit murder’ matter testified, in direct examination to certain conversations with the defendant on North Shore road and at the Economy store in Revere after July 15, 1921. They testified that the defendant engaged McDonald to kill Richardson because Richardson was worth two or three hundred thousand dollars and now that the aunt (Mrs. Cook) was out of the way if Richardson were killed the defendant could get anything he wanted from Mrs. Richardson; that the defendant talked over various ways to do the killing; that it was arranged to do it on a Saturday night by knocking in the head or shooting at the Richardson garage because he would have several hundred dollars on him that night; and that the defendant was to buy a gun, but did not, and then gave them $10 to buy one. Following this the records show the arrest of the defendant on a warrant from the Chelsea district court on July 23, 1921, on which there was an entry August 2 following of ‘dismissed for want of prosecution.’

In cross-examination of the witness McDonald by the defendant, this question, on objection of the district attorney, was excluded subject to the exception of the defendant that it was a proper question as it related to these two alleged crimes and to the same witness:

‘Q. Did you say to anybody that there was no connection between these two cases?’ (Murder and solicit to murder.)

Exception 6. The witness McDonald had testified in direct examination about the proposal of the defendant to purchase a gun and that he had told the defendant that he was too well known in police circles to buy it; that the defendant after requesting Lindsay to buy it, agreed to buy it himself and then gave them the $10 to buy one. In cross-examination, on objection by the district attorney, this question by the defendant was excluded subject to the exception of the defendant that it had been opened up in direct examination:

‘Q. You have been known in police circles, haven't you?’

Exception 9. The witness Lindsay had testified in direct examination that the defendant had asked him if he would burn out Hurley's for $100 and then later changed the proposal and asked him to kill Richardson. The defendant testifying denied these statements and said that Lindsay one day as the witness Hurley passed made a threatening remark about burning him out because Hurley had him (Lindsay) arrested; that the defendant told him to get that out of his head and never say it again; and that there had been some talk between the defendant, and the witness Hurley and the witness Wright about his burning. The defendant called the witness Hurley and, in direct examination, asked this question, which was excluded on objection subject to the defendant's exception, that it related to an issue raised by the commonwealth and was open to show all the facts:

‘Q. Now subsequent to that time did you say anything to the defendant about the alleged burning of your place?’

Exception 14. In cross-examination by the defendant Mrs. Richardson testified that she was divorced from William Kirby in 1902; that she married Richardson in Natchez, Mississippi, in 1904 and married him again in Nashua, New Hampshire, in 1910 because they had lost their earliest certificate. These questions then followed in cross-examination:

‘Q. Have you ever written down to get a copy of it?

‘Q. Now as a matter of fact isn't it true that you were not married in Natchez, Mississippi?

‘Q. Under what name were you married in Mississippi?

‘Mr. Walsworth. If your honor please, I offer to show that there is no record of a marriage between them in Natchez.’

These questions and this offer were each excluded on the objections of the district attorney subject to the defendant's exceptions that they were proper in cross-examination for contradiction and relating to her mode of living and her position.

Exception 17. The experts for the commonwealth testified in cross-examination that arsenic in the form of Fowler's solution was a common remedy in cases of tumor and cancer; that it could be readily obtained at drug stores by any one; and that it was the most probable source and form of the arsenic found in the body of Mrs. Cook. Mrs. Richardson testified in cross-examination that Mr. Richardson had a tumor; that he died from it before the trial; that he had been operated on in Florida and treated in Boston hospitals before his death; that she never heard of Fowler's solution being used in Richardson's treatment. These questions and answers, in cross-examination of Mrs. Richardson, then followed:

‘Q. He never had it? (Fowler's solution.) A. No.

‘Q. Would you be surprised to know that there was a time in connection with his treatment when Fowler's solution was used?’

This last question on objection of the district attorney was excluded subject to the exception of the defendant, that it was a proper inquiry on cross-examination from this witness.

Exception 18. It appeared from the testimony that, on Dr. Meader's orders continued by Dr. Nigro, Mrs. Richardson prepared beet-juice for Mrs. Cook by boiling beets and that this was taken regularly. Mrs. Richardson testified that she stopped making it early in May. The experts for the commonwealth testified in cross-examination that Fowler's solution could be mixed in small quantities in beet-juice and in various other fluids without apparent change. Referring to this beet-juice, Mrs. Richardson in cross-examination was asked:

‘Q. What did Dr. Nigro say about it?’

On objection the question was excluded subject to the defendant's exception that it was a proper inquiry in cross-examination of this witness.

Exception 19. It appeared in testimony from the hospital records that Mrs. Cook had been sick for a long time; that she was discharged from the hospital in March, 1921, because nothing more could be done for her; and that she might not live many months. The defendant and his wife testified that they gave the very best of care to Mrs. Cook, but knew from Dr. Nigro she could not live long. Mrs. Richardson testified that she told the defendant her sister would live. A defense witness Mrs. Springer testified that Mrs. Richardson told her Mrs. Cook could not live long and nothing could be done for her. On cross-examination Mrs. Richardson was asked these questions:

‘Q. As a matter of fact didn't the doctor (Dr. Nigro) say that there was nothing that could be done?

‘Q. Did you ever say to your sister, she ought to be very grateful for the care the Gettigans gave her?’

These questions on objection were excluded subject to the defendant's exceptions that it was proper cross-examination of this witness.

Exception 20. In cross-examination Mrs. Richardson was asked these questions:

‘Q. Have you a permit for carrying concealed weapons?

‘Q. Did you in June and July, 1921, have such a permit?’

These questions on objection were excluded subject to the defendant's exceptions that it was a proper inquiry on cross-examination of this witness.

Exception 21. It was testified that Mr. and Mrs. Richardson with McDonald and Lindsay had gone in July to the Chelsea police court to get a warrant for the defendant on a complaint of a threat to kill Richardson; that they had gone also to the Revere police in connection with the same matter; and that at each place there was some talk about the facts. In cross-examination Mrs. Richardson was asked these questions in order:

‘Q. I asked you whom you heard talk?

‘Q. Did you hear McDonald say anything?

‘Q. Did you hear McDonald say ‘We need the gun for the ‘get-away’?'

‘Q. Did you hear your husband say anything about the need of a gun?

‘Q. Did you hear Chief Dyer talk with McDonald about the facts of this case?’

These questions in order were each excluded, on objection by the district attorney, subject to the defendant's exceptions that they were material and open in cross-examination.

Exception 22. Mrs. Richardson testified in cross-examination that she lived at 11 Gertrude street, Lynn; and that previously she lived at 88 Beachland avenue, Revere, where Mrs. Cook died. These questions in cross-examination of Mrs. Richardson then followed:

‘Q. Is that your permanent home? (Lynn.) A. Well, I am there now. I do not know whether I will stay or not.

‘Q. Well, do you intend to remain there?’

On objection of the district attorney this question was excluded subject to the defendant's exception that it was a proper fact to establish.

Exception 23. Mrs. Richardson in direct examination testified that the defendant on Saturday, the day before Mrs. Cook died, told her at the house that he had called the undertaker; that Mrs. Cook was unconscious for three days before she died. This testimony then followed by questions and answers:

‘Q. Did it surprise you he had called an undertaker?

‘Q. (By Mr. Caro) And what did you say? A. I didn't say anything.

‘Q. I asked you if you said anything when he told you he had called an undertaker? A. I was so surprised I couldn't say anything.’

These questions and answers were allowed subject to the defendant's exceptions that they were not competent or material and unduly prejudicial against the defendant.

Exception 24. Mrs. Richardson, in direct examination testified, that the defendant told her to take out administration papers for Mrs. Cook's estate, then he would consent to her appointment, and that...