Commonwealth v. Green
| Decision Date | 10 April 1939 |
| Citation | 302 Mass. 547,20 N.E.2d 417 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | COMMONWEALTH v. WALLACE W. GREEN & another. |
January 3, 1939.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, & COX, JJ.
Practice, Criminal Presence of defendant, Amendment, Charge to jury, Verdict. Jury and Jurors. Evidence, Admissions, Competency, Of consciousness of guilt. Pleading, Criminal, Bill of particulars. Homicide.
The defendant had no right to be present at the hearing of requests by jurors to be excused before the empanelling of a jury to try an indictment for murder.
An admission by a defendant induced by a ruse or deception is admissible at the trial of an indictment against him.
In a criminal proceeding against two, no reversible error appeared on general exceptions to the admission of an entire conversation between the defendants in which each accused the other of the crime and defended himself, but each made certain admissions.
In admitting in evidence, at the trial of an indictment, a letter written by the defendant showing his consciousness of guilt of the crime charged in the indictment, the judge committed no error in refusing to exclude portions of the letter in which the defendant narrated other crimes committed by him.
At the trial of an indictment for murder, evidence as to the details of a robbery about ten days after the murder, by which the defendant obtained an automobile used by him to go to a distant city where he had no occasion to go, was admissible as showing his consciousness of guilt.
It is within the power of the trial court to allow the Commonwealth in a murder case to amend, in a manner not prejudicial to the defendant, a specification or bill of particulars previously filed by it upon motion by the defendant.
If two persons, one armed with a pistol, entered a store for the purpose of robbing the storekeeper in violation of G.L. (Ter. Ed.) c 265, Section 17 or Section 21, and attempted the robbery, and then one or both decided not to proceed further with the crime and to escape, and the storekeeper was shot and killed by one of them in order to facilitate their escape, both might be found guilty of murder in the first degree.
No violation of G.L. (Ter. Ed.) c. 231, Section 81, appeared at a criminal trial in a charge to the jury wherein the judge marshalled the evidence and then left to them the question of its sufficiency to prove guilt.
No instructions respecting manslaughter were required at a trial for murder where the evidence showed only that the crime committed was a killing in the course of an attempted armed robbery.
Upon a jury's bringing in a verdict of "guilty" of "the charges as brought" at a murder trial, it was proper for the judge to refuse to accept or record the verdict and to send the jury back to reconsider it respecting the degree of murder.
INDICTMENT, found and returned on July 1, 1938, against Wallace W. Green and Walter St. Sauveur.
The indictment was tried before Gray, J.
R. E. McCarthy, (R.
A. Shea with him,) for the defendant Green.
G. B. Lourie, for the defendant St.
Sauveur.
W. J. McCluskey, Assistant District Attorney, for the Commonwealth.
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, Section 4. St. 1935, c. 437, Section 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, Sections 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.
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 empanelling 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, Section 6), does not extend to proceedings before the trial begins. See Commonwealth v. Snyder, 282 Mass. 401 , 414, affirmed 291 U.S. 97; Commonwealth v. Millen, 289 Mass. 441 , 452-455. The judge acted in accordance with a common practice, to which there is no legitimate objection.
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 . Wigmore, Evidence (2d ed.) Section 841.
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. Commonwealth v. Gangi, 243 Mass. 341 . Commonwealth v. Graham, 279 Mass. 466 . Commonwealth v. Kosior, 280 Mass. 418, 422. Commonwealth v. Osman, 284 Mass. 421 , 424. Commonwealth v. Polian, 288 Mass. 494 , 496. 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, The exceptions taken were to the dispute as a whole, and not to any particular statements. Commonwealth v. Johnson, 199 Mass. 55 , 61. Carroll v. Carroll, 262 Mass. 10 , 13. Commonwealth v. Osman, 284 Mass. 421 , 424. No error appears.
Sauveur is to the refusal of the judge, while admitting in evidence letters written by St. Sauveur 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: -- ...
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