Commonwealth v. Gray

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: COX
• Citation: 49 N.E.2d 603,314 Mass. 96
• Parties: COMMONWEALTH v. GRAY.
• Decision Date: 28 May 1943

314 Mass. 96
49 N.E.2d 603

COMMONWEALTH
v.
GRAY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1943.

Robert Hayward Gray was convicted of murder, armed robbery, and breaking and entering, and he appeals.

Affirmed.

[49 N.E.2d 604]

Appeal from Superior Court, Suffolk County; J. P. Higgins, Judge.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and COX, JJ.

J. T. Cassidy, Asst. Dist. Atty., of Boston, for the Commonwealth.

H. E. Quarles, of Boston, for defendant.

COX, Justice.

The defendant, who was indicted on August 4, 1942, for the murder of Zelda Karchmer on July 7, 1942, was found guilty of murder in the first degree. At the trial he was also tried on an indictment charging that being armed, he robbed the deceased, and on another indictment charging him with breaking and entering the building where she lived. He was also found guilty on these indictments. The trials were held under the provisions of G.L.(Ter.Ed.) c. 278, §§ 33A-33G, as amended. The defendant admitted that on July 7, 1942, he went to the deceased's home and slashed her neck with a razor, as a result of which she died. The defendant's motion for a new trial, filed on February 4, 1943, was denied. Claims of appeal and assignments of error were filed.

The first nine assignments of error are to the admission, subject to the defendant's exception, of photographs of the deceased that were taken after the killing. No question is raised as to the identification of the photographs or as to their being fair representations. All of the photographs show the wounds that were admittedly inflicted by the defendant and one also shows the deceased lying upon the bed, where the defendant, who was a witness, testified that he put her and ‘where her body was found.’ This photograph shows the left leg of the deceased exposed to the region of her thigh. There was testimony that when the body was discovered, it was nude from the waist down, and that, before the photograph in question was taken, a garment had been laid over the exposed part of the body except for the left leg. The Commonwealth contended that the jury could find that the deceased was murdered in the commission of the crime of robbery, or attempted rape, or with extreme atrocity or cruelty, and the murder indictment was submitted to the jury without objection, and with instructions by the judge which permitted them to find the defendant guilty of murder in the first degree if the crime was committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life. See G.L.(Ter.Ed.) c. 265, § 1.

We are of opinion that there was no error in the admission of the photographs. The question of their admissibility is disposed of adversely to the defendant by a long line of cases, some of which are Commonwealth v. Robertson, 162 Mass. 90, 97, 38 N.E. 25;Commonwealth v. Tucker, 189 Mass. 457, 476, 76 N.E. 127;Commonwealth v. Retkovitz, 222 Mass. 245, 248, 249, 110 N.E. 293;Commonwealth v. Knowlton, 265 Mass. 382, 385, 386, 163 N.E. 251;Commonwealth v. Osman, 284 Mass. 421, 423, 188 N.E. 226;Commonwealth v. Clark, 292 Mass. 409, 410, 411, 198 N.E. 641;Commonwealth v. DiStasio, 294 Mass. 273, 282-283, 1 N.E.2d 189, and Commonwealth v. Sheppard, 313 Mass. 590, 48 N.E.2d 630. The judge, in his charge, in referring to the photographs, plainly told the jury that they were introduced not to arouse in their minds any passion or prejudice against the defendant, but merely as evidence, the value of which was to be determined by them, apart from any thought they might have that the photographs were gruesome or prejudicial to the defendant.

The tenth assignment of error is based upon an exception to the denial of the motion for new trial, the first two grounds of which are that the verdict was against the

[49 N.E.2d 605]

evidence and the weight of the evidence, and that it was rendered contrary to law. Other grounds are that on July 22, 1942, the department of mental health, purporting to act under the provisions of G.L. (Ter.Ed.) c. 123, § 100A, as appearing in St.1941, c. 194, § 11, examined the defendant with a view of determining his mental condition; that a report of this examination was filed with the clerk of the Superior Court prior to November 4, 1942 (the date on which the trial began); that this examination was not made in compliance with the statute in question, in that it took place prior to the date on which the defendant was indicted; and that, accordingly, the defendant was denied dur process of law in violation of his rights under the Federal Constitution and that of the Commonwealth. Further allegations are that the examination was conducted with a view of determining the mental condition of the defendant as of July 22, 1942 (the date on which the examination was made), and not as of the date on which the indictment alleged that the defendant committed the crime of murder, and that the report of the examination should not have been admitted in evidence, as it was. The assignments of error, eleven to fourteen, inclusive, are based upon exceptions to the denial of four requests of the defendant for rulings on the motion for new trial, (1) that upon all the evidence, the defendant is entitled to a new trial; (2) that a new trial is necessary in order to prevent a miscarriage of justice; (3) that a new trial should be granted, as a matter of law, to a defendant who has been denied the ‘privilege and protection’ of an examination and investigation by the department of mental health as provided by statute; and (4) that a defendant is entitled to a new trial, and is denied due process of law, in being placed on trial in a capital case on the basis of a report of an examination of the defendant by the department, when such examination is conducted with a view to determine his mental condition, or the existence of any mental disease or defect that would affect his criminal responsibility, as of the date such examination is made, and not as of the date, alleged in the indictment, of the commission of the offence. Assignments of error, ten to fourteen, inclusive, may properly be considered together. We are of opinion that no error is disclosed.

The defendant contended that, at the time of the killing, he was in such a...