Commonwealth v. Goldenberg

• Decision Date: 29 November 1943
• Citation: 315 Mass. 26,51 N.E.2d 762
• Parties: COMMONWEALTH v. MYER GOLDENBERG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 26

51 N.E.2d 762

COMMONWEALTH v. MYER GOLDENBERG.

Supreme Judicial Court of Massachusetts, Suffolk.

November 29, 1943

November 1, 1943.

Present: FIELD, C.

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

Homicide. Evidence Presumptions and burden of proof.

A finding that a woman was stabbed to death by the defendant as she sat in his automobile stopped in a public park and not, as asserted by the defendant, by an armed robber who disappeared after assaulting and robbing the defendant and killing the woman and a verdict of guilty of murder in the second degree were warranted by testimony of the medical examiner, evidence that, after knowledge of the indictment, the defendant attempted suicide, and other evidence in conjunction with certain portions of a statement by the defendant in evidence although such finding and conviction would not have been warranted if the jury either had believed or had disbelieved the whole of the defendant's statement and although there was no evidence of any motive of the defendant for the killing or of any quarrel between him and the woman.

INDICTMENT for murder, found and returned on October 15, 1942. The case was tried before Buttrick, J. Following a verdict of guilty of murder in the second degree, the defendant filed an appeal with an assignment of error.

F. L. Simpson, (H.

Mandelstam with him,) for the defendant.

W. J. Foley, District Attorney, & E.

M. Sullivan, Assistant District Attorney, for the Commonwealth, submitted a brief.

RONAN, J. The assignment of error in this case is based upon the refusal of the judge to direct a verdict of not guilty at the trial of an indictment charging the defendant with the murder of Sophie Robart, which resulted in the conviction of the defendant of murder in the second degree.

It is undisputed that Mrs. Robart was murdered at about 9:30 o'clock on the evening of August 30, 1942, while she sat in the front seat of the defendant's automobile while it was parked in a road in Franklin Park, in Boston. The sole issue at the trial was whether she was killed by the defendant.

The defendant's version of the homicide was fully set forth in four statements he gave to the police. We recite the salient facts contained in these statements. The defendant, a single man thirty-seven years of age, had for four years been keeping company with Mrs. Robart, who had obtained a divorce from her husband seven years before and was living with her child at the home of her parents in Boston. The defendant went to her home on the evening in question, and left there with her about eight o'clock for the purpose of attending a moving picture theatre, to which they went in his automobile. As there was only standing room at this theatre, he drove with her to two other theatres, each of which was exhibiting a picture that either she or he had previously seen. They did not attend either theatre. He then drove to the American Legion Highway and stopped near Angell Street, where they spent nearly one half an hour conversing and smoking cigarettes, when a man whom he described appeared by the front right window of the automobile and inquired the way to Boston. The defendant pointed the direction. The man then exhibited a revolver. He warned the defendant and his companion not to make a false move or he would blow out their brains. He put his hand through the lowered front window opened the rear right door and sat in the middle of the rear seat. He ordered the defendant to turn to one side the mirror which showed what was to the rear of the automobile. Still holding the revolver, he demanded the defendant's wallet. The defendant reached into his coat or trousers and handed over the wallet. It contained $30. He had nearly $23 in another pocket. The robber then directed the defendant to drive to Morton Street and through the Carter entrance to Franklin Park and along Circuit Drive, where he ordered the defendant to stop and shut off his motor. The defendant obeyed these instructions. He had then driven about eight hundred feet into the park. He stopped near a large boulder which was about two hundred feet north of an electric light on a pole numbered 1706. The robber struck the defendant under the behind his right ear with some hard object which caused a deep cut one and one half inches in length. He was rendered unconscious, or dazed or stunned. He was awakened by the screams of his companion and had a recollection of blows being showered upon her. He fell or stumbled out of the front left hand door, and Mrs. Robart came through that door either alone or assisted by him. The robber had disappeared. The defendant held his companion by the left arm as they ran or walked in a southerly direction toward Morton Street. They went fifteen, thirty or sixty feet, or maybe sixty yards, when she collapsed in the road. He ran back to his automobile, turned it around and stopped opposite where she lay in the road. He endeavored, but was unable, to put her into the rear right door of his automobile. He then dragged the body to the westerly side of the road, leaving the head and shoulders resting upon the greensward. He drove out to the entrance of the park, where he stopped, and secured the aid of people who happened to be passing by in automobiles. He told them that he had been held up and that his woman companion was in the park. Some of these hastened into the park. One of them drove him in the defendant's automobile to a hospital where his wound was dressed. He was then taken to the police station.

An examination of the locus showed that the defendant stopped his automobile near a large boulder. A blood spot was found in the middle of the road about opposite where the automobile had stopped. The place where he claimed to have placed the body was on the westerly side of the road about two hundred feet south of the boulder and about twenty-five feet northwesterly of pole numbered 1706. Two blood spots, each about a foot in diameter, were found in the road, one about fifteen feet to the north of where the body had been, and a second ten feet farther to the north. The victim's pocket book was found in the road near the spot opposite the boulder, and nearby were her broken eyeglasses. She wore a necklace to which was attached a five dollar gold piece. He wore a wrist watch. Neither was taken by the robber. The defendant's ring was found a foot from her body.

An autopsy revealed that she had been cut in the upper right arm. She had been stabbed twice in the armpit and seven times in the back. This was accomplished by a sharp knife three to five inches in length, which was wielded with great force. Some of these wounds penetrated the lung and dissected some of the ribs. She died of exsanguination. According to the medical examiner, these blows were delivered by a person who was standing by the open right front door of the automobile and not by a person located in the rear of the automobile, and the condition of the coagulated blood on her face indicated to him that she slumped face down into a large quantity of blood which was deposited upon the vacant seat back of the steering wheel. He was of the opinion that the victim was unable to move after the attack and that she died within a few minutes. A physician who treated the defendant early on the morning of August 31, 1942, was of the opinion that the defendant was not rendered unconscious by the blow which he had received.

The defendant's automobile had a large blood spot in the driver's seat, some blood on the floor in front of the right front seat, and some blood by the rear running board and the threshold of the rear right door. Blood was found on the handles to both doors on the right side. There was no blood on the top of the back of the front seat.

The knife was never found. The defendant had a small pen knife which he used for cutting twine at the place where he was employed. There was no evidence that he ever had a knife of the kind used in the commission of this offence.

There was no evidence that the defendant had any quarrel with Mrs. Robart or that his relations with her were not respectable and honorable. No motive for the killing was shown, and the jury were so instructed.

The defendant on October 19, 1942, four days after a copy of the indictment was read to him at the jail, attempted to commit suicide by slashing his wrists and forearms with a pencil clip.

The evidence requires careful scrutiny to determine whether it was sufficient to support the verdict. The statements of the defendant, which he made to the police, showed hardly any differences whatever in describing any of the events which he claimed occurred before or after the killing or at the time of its occurrence. If the jury adopted the substance of these statements, they would be bound to come to the conclusion that the murder was committed by a robber. On the other hand if all these statements were entirely discredited by the jury and if they were wholly eliminated from the case, there would be little left to support this conviction. The jury, however, were not required to accept or reject these statements in their entirety, but they could give credence to such portions as they found trustworthy. It is clear that they did not believe that any robber murdered this woman. There was no evidence, other than what is contained in these statements, that any living person other than the defendant ever claimed to have seen this robber. The defendant never stated that the robber was armed with any knife. All that he claimed to have seen in the way of weapons was a revolver. There was no evidence that any shots were fired. Mrs. Robart, according to the defendant's story to the police, obeyed whatever commands he heard the robber make. There is no evidence that...