Commonwealth v. Green

Decision Date13 April 1939
Citation302 Mass. 547,20 N.E.2d 417
PartiesCOMMONWEALTH v. GREEN. SAME v. ST. SAUVEUR.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Wallace W. Green and Walter St. Sauveur were convicted of murder in the first degree, and they appeal.

Judgments affirmed.Appeals from Superior Court, Middlesex County; Gray, Judge.

R. E. McCarthy and R. A. Shea, both of Boston, for appellant Green.

G. B. Lourie, of Boston, for appellant St. Sauveur.

W. J. McCluskey, Asst. Dist. Atty., of Boston, for the Commonwealth.

LUMMUS, Justice.

The defendants, youths of twenty-one and eighteen years respectively, were tried together upon an indictment charging them jointly with the murder of William Phillips. Each was found guilty of murder in the first degree. Sentence of death was imposed upon each. G.L.(Ter.Ed.) c. 279, § 4 (St.1935, c. 437, § 3). Each brings the case here by 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.

A woman who lived on the third floor across the street from the small variety store kept by William Phillips was the only eyewitness to his killing. About ten minutes after eleven o'clock on the evening of May 31, 1938, her attention was attracted by a noise of breaking glass in the store, followed immediately by seven pistol shots in rapid succession. On reaching the open window, after the shots had been fired, she saw two men in the doorway of the store, running out. She could not identify them. They turned to their left, and disappeared in an alley which leads to the back door of the house where St. Sauveur lived, less than two hundred feet away. Then Phillips staggered from the rear of the store to the door, and fell face down upon the threshold. A bullet from a German Mauser automatic pistol of .32 caliber had entered his chest, pierced his heart, and passed out through his back. He died without regaining consciousness. A prompt examination by police officers disclosed glass from broken bottles in the middle of the store, between the counters. It could have been found that Phillips threw the bottles in self defence against an attempted armed robbery by the two men. Counsel for each defendant conceded in argument to the jury that the two men who were in the store at the time of the killing were there, armed with a pistol, for the purpose of robbing Phillips. Seven shots were fired from the middle of the store at some person or object behind the counter at the left of the store as one enters. All seven bullets were recovered. All had been fired from the same pistol.

A pistol was identified by expert testimony as the one from which all the bullets, including the fatal one, were fired. Each defendant admitted and testified that at some time he possessed that pistol. Green testified that he knew nothing of the crime, but had sold the pistol to St. Sauveur for $25 a short time before. The pistol was found upon St. Sauveur in Salt Lake City, for which place he had started on June 9, 1938, with one Richards in an automobile obtained by them by a robbery. St. Sauveur, after telling many conflicting stories, told the police and testified at the trial that he and Green and a man known only as Joe were together on the evening of May 31, 1938, trying to find someone to rob; that at last Green proposed to rob Phillips; that St. Sauveur, being known to Phillips, refused to take part; that by arrangement St. Sauveur remained in his house while Green and Joe set out with a pistol to rob Phillips; that St. Sauveur heard shots; that Green and Joe soon returned by the back door; that the next morning Green gave St. Sauveur the pistol in question to get rid of; that Green and Joe then departed separately; and that St. Sauveur buried the pistol in the cellar at Richards's house, digging it up to use it in a robbery on June 9, 1938, and to take it to Salt Lake City. The story of each defendant, if believed, absolved him from liability as a principal in the robbery and killing of Phillips. The Commonwealth contended that Joe did not exist.

We discuss in order the assignments of error that have been argued. No error appears in the others.

1. The first assignment of St. Sauveur relates to the act of the judge in listening to requests of certain jurors to be excused, and in excusing certain jurors, all before the impanelling of a jury to try the defendants and in the absence of the defendants. The right of a defendant to be personally present during a trial for felony (G.L.[Ter.Ed.] c. 278, § 6), does not extend to proceedings before the trial begins. See Commonwealth v. Snyder, 282 Mass. 401, 414, 185 N.E. 376, affirmed 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, 90 A.L.R. 575;Commonwealth v. Millen, 289 Mass. 441, 452–455, 194 N.E. 463. The judge acted in accordance with a common practice, to which there is no legitimate objection.

2. The second assignment of St. Sauveur is to the reception in evidence of statements containing admissions, made by him to police officers in Salt Lake City, after they had attempted to convince him, perhaps successfully, by a pretended telegram from a chief of police in Massachusetts,that Green had confessed and had accused St. Sauveur of the actual shooting. There is no rule of law that an admission or even a confession is inadmissible in evidence because induced by a ruse or deception. Commonwealth v. Flood, 152 Mass. 529, 25 N.E. 971. Wigmore, Evidence (2d ed.) § 841.

3. The third assignment of St. Sauveur and the first of Green, are based upon the admission in evidence of what each said during a verbal dispute between them in the presence of police officers. Each defendant accused and reviled the other while defending himself. They invoke the principle that an accusation met by a complete denial is not an admission. Commonwealth v. Spiropoulos, 208 Mass. 71, 74, 94 N.E. 451;Commonwealth v. Gangi, 243 Mass. 341, 137 N.E. 643;Commonwealth v. Graham, 279 Mass. 466, 181 N.E. 506;Commonwealth v. Kosior, 280 Mass. 418, 422, 182 N.E. 852;Commonwealth v. Osman, 284 Mass. 421, 424, 188 N.E. 226;Commonwealth v. Polian, 288 Mass. 494, 496, 193 N.E. 68. But during the dispute each defendant made admissions. St. Sauveur admitted being with Green on the night of the killing, having possession of the pistol, and telling Richards that he, St. Sauveur, did the killing. Green admitted having possession of the pistol before the killing, and further said, ‘I will stick to my story, gentlemen. It is just as good as any.’ The exceptions taken were to the dispute as a whole, and not to any particular statements. Commonwealth v. Johnson, 199 Mass. 55, 61, 85 N.E. 188;Carroll v. Carroll, 262 Mass. 10, 13, 159 N.E. 517;Commonwealth v. Osman, 284 Mass. 421, 424, 188 N.E. 226. No error appears.

4. The fourth assignment of St. Sauveur is to the refusal of the judge, while admitting in evidence letters written by St. Sauvenur to Green while they, with Richards, were in jail awaiting trial, to exclude narrations by St. Sauveur of other crimes that he had committed. St. Sauveur was deploring his helpless situation as to escape, due to the fact that Green was not permitted to go into the jail yard with him, though Richards was. St. Sauveur wrote: ‘But as it is, I'm alone and have no help. As for Richards, he couldn't beat his way out of a paper bag. In the first place, I won't take him with me. I've learned my lesson with him. When we kidnapped the guy [apparently referring to the robbery by which St. Sauveur and Richards obtained an automobile on June 9, 1938] I had to do all the work. I had to stick the guy up, take him out of the car, tie him up, and frisk him. Richards was so nervous he dam near couldn't talk. Then another time, when we pulled a job down in Somerville Kent. We walked in the bar room and I ordered a couple of whiskeys. I was flat broke, a didn't even have a penny, there was a guy sitting in a booth reading a paper so I told the guy at the bar to hand over the dough. Which he quickly did. I scooped up the dough, about $86 and I told Richards to take the other guy who was reading the paper and didn't know a thing about what was going on into the back room. Richards was afraid to do it so that got me sore, and I walked over to the booth and without a word I cracked the gun over his skull and walked out.’

Ordinarily the commission by a defendant of an independent crime cannot be shown, even by his own admission, as evidence tending to show the commission of the crime charged. Commonwealth v. Kosior, 280 Mass. 418, 423, 182 N.E. 852. The fact that a defendant appears to be a bad man, capable of, and likely to commit, such a crime as that charged, might lead a jury to dispense with proof beyond reasonable doubt that he did actually commit the crime charged. But evidence otherwise admissible does not cease to be so because it happens to show the commission of an independent crime. Commonwealth v. Snell, 189 Mass. 12, 21, 75 N.E. 75, 3 L.R.A.,N.S., 1019; Commonwealth v. Jackson, 132 Mass. 16;Commonwealth v. Feci, 235 Mass. 562, 567, 127 N.E. 602;Commonwealth v. Murphy, 282 Mass. 593, 598, 185 N.E. 486.

The letters written by St. Sauveur to Green while both were in jail showed despair of acquittal at a trial, eagerness to escape from jail by violence, belief that a violent escape could be accomplished if the two could get together, hope that a pistol might be procured, and finally a plan of escape which involved murder with a knife if anyone should interfere. All this was admissible to show consciousness of guilt. Commonwealth v. Madeiros, 255 Mass. 304, 314, 151 N.E. 297, 47 A.L.R. 962;Commonwealth v. Mercier, 257 Mass. 353, 368, 369, 153 N.E. 834; Wigmore, Evidence (2d ed.), s. 276. The unwillingness of St. Sauveur to seek help from Richards for the reasons stated, tended to show the extent of his desperation and his willingnessto use any degree of violence in his escape.

5. The fifth assignment of St. Sauveur is...

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