Commonwealth v. Gordon

• Citation: 29 N.E.2d 719,307 Mass. 155
• Parties: COMMONWEALTH v. GORDON.
• Decision Date: 31 October 1940
• Court: United States State Supreme Judicial Court of Massachusetts

307 Mass. 155

29 N.E.2d 719

COMMONWEALTH

v.GORDON.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 31, 1940.

Howard R. Gordon was convicted of murder in the second degree, and he appeals and assigns errors.

Affirmed.Appeal from Superior Court, Worcester County; Burns, Judge.

Argued before FIELD, C. J., and LUMMUS, QUA, COX, and RONAN, JJ.

A. B. Cenedella, Asst. Dist. Atty., of Worcester, for Commonwealth.

E. A. Ryan, of Worcester, for defendant.

LUMMUS, Justice.

This is an indictment charging that the defendant on the tenth day of October, 1939, at Worcester, did assault and beat his wife ‘Aurore Gordon with intent to murder her by striking and kicking her, and by such assault and beating did murder said Aurore Gordon.’ The crime was alleged to be murder in the second degree. After a verdict of guilty of murder in the second degree, the case comes before us on appeal, with a summary of the record, a transcript of the evidence, and an assignment of errors, under G.L.(Ter.Ed.) c. 278, §§ 33A–33G.

There was evidence that the defendant came to the police station and told police officers that he had killed his wife. Returning with him to the house, the officers found in the bed the dead body of the defendant's wife, with her nose fractured, wounds on her face, her skull fractured, and her brain exposed. A signed confession given by the defendant to police officers stated that after going to bed on the night of October 9, 1939, the defendant got up soon after midnight, feeling ill and with a ‘twisted’ mind, put on his shoes, and went into another room. Returning to bed, where his wife was lying asleep, he struck her in the face with his fist and then jumped on her face with his shoes. He testified that on the evening before he and his wife had quarrelled about his buying an automobile instead of paying the milk bill. No cause of death was found except the injuries to her head, and those could have been caused by jumping on her face with shoes, and were adequate to cause death.

The defense made two points, not wholly consistent with each other. The first was that on his return from the other room the defendant was in such distress that he got into bed with his feet near his wife's head and kicked about in pain. When he waked up he found his feet and shoes in his wife's face, and discovered that she was dead. In other words, he contended that her death was accidental. The second defense was insanity. The defendant offered the testimony of two alienists who admitted that the defendant was not insane before or since the occurrence in the early morning of October 10, 1939, but expressed the opinion, based solely upon the defendant's testimony as to that occurrence, that the defendant was insane at the time. They did not distinguish in their testimony between the lack of mental capacity that excuses a defendant from legal responsibility for crime, and the broader conception of insanity that medical men may entertain but that has no legal consequence in criminal cases. Commonwealth v. Clark, 292 Mass. 409, 413, 414, 198 N.E. 641.

The errors assigned are numerous, but none of them requires extended discussion. We refer to them by their numbers.

1. The hypothetical question to a general practitioner of medicine called for an expert opinion, and was properly excluded on the ground that the witness was not qualified as an expert. 2, 3, 4, 7, 10, 13, 16. These alleged errors are based upon the admission in evidence of a hammer found in the house. This did the defendant no harm, for the prosecution did not contend that the defendant used the hammer upon his...