Commonwealth v. Gray
| Citation | 314 Mass. 96,49 N.E.2d 603 |
| Parties | COMMONWEALTH v. ROBERT HAYWARD GRAY. |
| Decision Date | 28 May 1943 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 3, 1943.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, & COX, JJ.
Evidence Photograph. Practice, Criminal, New trial, Examination of defendant by department of mental health.
At a murder trial certain photographs of the murdered person were relevant and admissible on the issue whether the killing was with deliberately premeditated malice aforethought or with extreme atrocity or cruelty.
A new trial of an indictment for murder was not required by the circumstances in which, during direct and cross-examination of physicians called as witnesses by the Commonwealth, who had examined the defendant at the direction of the department of mental health under the provisions of Section 100A of G. L. (Ter. Ed.) c 123, as appearing in
St. 1941, c.
194, Section 11, their report, offered in evidence by the
Commonwealth and to the effect that the defendant had no mental disease or defect affecting his criminal responsibility, was admitted without objection by the defendant and formed part of the basis of his counsel's argument to the jury.
The granting of a new trial of an indictment for murder was not required as a matter of law by circumstances alleged to show that the defendant was placed on trial without a proper examination of him under
Section 100A of G. L. (Ter. Ed.) c. 123 as appearing in St. 1941, c.
194, Section 11, where it appeared that he, with knowledge of the nature of the report of the examination, had moved for a further examination but thereafter had waived such motion and had proceeded to trial without objection.
INDICTMENT, found and returned on August 4, 1942. The case was tried before Higgins, C.J.
H. E. Quarles, for the defendant. J. T. Cassidy, Assistant District Attorney, for the Commonwealth.
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, Sections 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, Section 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, Commonwealth v. Tucker, 189 Mass. 457 , 476, Commonwealth v. Retkovitz, 222 Mass. 245 , 248-249, Commonwealth v. Knowlton, 265 Mass. 382 , 385, 386, Commonwealth v. Osman, 284 Mass. 421 , 423, Commonwealth v. Clark, 292 Mass. 409 , 410, 411, Commonwealth v. DiStasio, 294 Mass. 273 , 282-283, and Commonwealth v. Sheppard, 313 Mass. 590, 598-599. 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 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, Section 100A, as appearing in St. 1941, c. 194, Section 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 due 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 mental condition that he was not responsible for his acts, and there was evidence in support of this contention.
General Laws (Ter Ed.) c. 123, Section 100A, as appearing in St. 1941, c. 194, Section 11, provides in part that whenever a person is indicted by a grand jury for a capital offence, "or whenever a person, who is known to have been indicted for any other offense more than once or to have been previously convicted of a felony, is indicted by a grand jury or bound over for trial in the superior court," the clerk of the court shall give notice to the department of mental health, "which shall cause such person to be examined with a view to determine his mental condition and the existence of any mental disease or defect which would affect his criminal responsibility." The probation officer is required to disclose such facts as he has, which if known to the clerk would require notice to the department, and the department is required to file a report of its investigation with the clerk of the court in which the trial is to be held. The report is accessible to the court, the probation officer, the district attorney, and to the attorney for the accused. Prior to the enactment of this section, the judge of any court of the Commonwealth might, and still may, in his discretion, request the department to assign a physician to make such examination as he deemed, or deems, necessary, in order to determine the mental condition of any person coming before the court (G. L. [Ter. Ed.] c. 123, Section 99), and there was, and still is, a further provision for the commitment to an institution for the insane of any person who, at the time appointed for trial or sentence, or at any time prior thereto, was, or is, found by the court to be insane or in such mental condition that his commitment was, or is, necessary for his proper care or observation pending the determination of his insanity. (G. L. [Ter. Ed.] c. 123, Section 10...
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