Commonwealth v. Handren

• Decision Date: 23 November 1927
• Citation: 158 N.E. 894,261 Mass. 294
• Parties: COMMONWEALTH v. HANDREN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 294

158 N.E. 894

COMMONWEALTH

v.HANDREN.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 23, 1927.

Appeal from Superior Court, Middlesex County.

James H. Handren was convicted of larceny of personal property and he appeals. Verdict set aside. Case to stand for trial.Timothy F. Callahan and Eugene J. Harrigan, both of Boston, for appellant.

R. T. Bushnell, Dist. Atty., of Boston, for the Commonwealth.

PIERCE, J.

The defendant was indicted by the grand jury for the county of Middlesex on the first Monday of April, 1927, for the larceny of certain personal property, at Cambridge, within that county. On April 8, 1927, the defendant was arraigned, had the indictment read to him, pleaded not guilty, and put himself upon the country. A jury was impaneled on April 20, 1927, for the trial of the indictment so found.

During the trial the identity of certain dolls was in issue, both to prove the defendant guilty of larceny under the indictment of these specific articles, and as a connecting link tending to show that the defendant took certain other articles described in the indictment as stolen by him. The defendant contended that the dolls which were seized at his residence in Boston, which the commonwealth contended were dolls stolen from Arthur H. Whitney at Watertown in the county of Middlesex, were his own and were made by him. The commonwealth summoned Carrie E. Atteaux, of Brookline, in the county of Norfolk, a maker of dolls. In response thereto a physician presented a certificate stating that Mrs. Atteaux was under treatment for paralysis of the face; that it would be impossible for her to come to court, but that she could talk if she were interviewed in her home. The commonwealth thereupon moved that the court and jury be taken to the home of Mrs. Atteaux, and the motion, against the objection of the defendant, was granted.

The defendant had summoned one Arthur Whitney, of Watertown, in the county of Middlesex, the owner of the house in which the alleged larceny had occurred. A physician, under the impression that Whitney was summoned by the commonwealth, sent a certificate to the district attorney, stating in substance that Whitney had undergone a serious operation and was only recently permitted to leave his bed and to sit in a wheel chair. The commonwealth did not move to have the testimony of Whitney taken, but the judge stated that, because of the fact that there had been considerable testimony as to the layout of the house and the location of various rooms, he considered that, inasmuch as the testimony of Mrs. Atteaux was to be taken, he felt that a view would be helpful, and would so order a view taken of the Whitney premises on his own motion. The defendant seriously objected to this order.

Thereafter the judge, the jury, the clerk and the deputy sheriffs convened at the residence of Mrs. Atteaux, in Brookline, in the county of Norfolk. Mrs. Atteaux was sitting up when the court and jury arrived. She was sworn as a witness for the commonwealth and testified that she made the dolls in question, and she positively identified them. She also testified in cross-examination by the defendant. The court then adjourned to the house of Whitney in Watertown. Whitney was sworn and examined by the commonwealth, and cross-examined by the defendant. From the residence of Whitney the court returned to the courthouse at Cambridge, where the trial was resumed. The defendant was found guilty by the jury on the first count of the larceny of a pin, and on the fourth count of the larceny of two dolls, and not guilty on the other counts of the indictment.

At the close of the evidence, the defendant moved (1) to strike out the testimony of Carrie E. Atteaux; (2) to strike out the testimony of Arthur Whitney; (3) for a mistrial; and (4) in arrest of judgment. These motions were based substantially on the same reasons, and were denied. The question which underlies all these motions is, Has a judge of the superior court, after an indictment of a defendant, after his arraignment and plea, and after the impaneling of the jury to try the issues, authority to adjourn the trial to a place within the county other than to another shire town, or to any place whatsoever in any county other than the county where the offense described in the indictment is alleged to have been committed?

[2][3] At common law the indictment for a crime must be found in the county where the crime occurred, and the issue must be tried by a jury of that county, unless the case was removed for trial into an adjacent county ‘for the necessity of an indifferent trial.’ Crocker v. Justices of Superior Court, 208 Mass. 162, 167, 94 N. E. 369,21 Ann. Cas. 1061, and cases cited to both points at pages 178, 179 (94 N. E. 376, 377). The court of common pleas was given authority in a criminal case to order a view by a jury by Rev. Sts. c. 137, § 10. Except upon indictment for criminal nuisances, it seems that at common law views were not allowed in a criminal case ‘without mutual consent.’ 1 Burr. 252. The right to order a view, at least since the statute, supra, extends to places without as well as within the county where the crime is alleged to have been committed. Commonwealth v. Dascalakis, 246 Mass. 12, 29, 140 N. E. 470;Commonwealth v. Gedzium (Mass.) 156 N. E. 890. And the knowledge which the jurors thus acquire is evidence in the case. Tully v. Fitchburg Railroad, 134 Mass. 499;Smith v. Morse, 148 Mass. 407, 410, 19 N.E. 393;McMahon v. Lynn & Boston Railroad, 191 Mass. 295, 299, 77 N. E. 826;Commonwealth v. Mercier, 257 Mass. 353, 365, 153 N. E. 834;Carpenter v. Carpenter, 78 N. H. 440, 101 A. 628, L. R. A. 1917F, 974, and annotation at page 984; Wall v. United States Mining Co. (C. C.) 232 F. 613, 616.

[4] The right of the superior court to order a change of venue from one vicinage to another for the purpose of securing an impartial trial is a...