Commonwealth v. Holmes

• Decision Date: 02 September 1879
• Citation: 127 Mass. 424
• Parties: Commonwealth v. James Holmes
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

127 Mass. 424

Commonwealth v. James Holmes

Supreme Court of Massachusetts

September 2, 1879

Argued September 10, 1878 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Berkshire. Indictment for burning the barn and shed of John C. Munson in Great Barrington, in the night-time of September 11, 1876. Trial in the Superior Court before Rockwell, J., who allowed a bill of exceptions, the material parts of which were as follows:

Charles U. Surner, who had been indicted, tried and convicted of burning the same buildings, and was in custody awaiting sentence, and was admitted to have been an accomplice and an accessory before the fact, was called as a witness for the Commonwealth, and testified that he would be twenty years old on November 23, 1878; that he worked at Great Barrington village, and on Saturday afternoon, September 2, 1876, went home to his father's house, changed his clothes, and left there about seven o'clock, walked alone to the village of Housatonic, about two miles off, arrived there about eight o'clock, and attended a temperance lecture in the hall, which closed about nine o'clock, and then went out of the hall, fell into company with William Moore, and they walked around the square and about the village, a part of the time with two girls whom they found on the street, and he and Moore separated in the southerly part of Housatonic village, below the Valley House, a little after ten o'clock, and he walked alone towards his father's house, (which was admitted to be about half a mile from Munson's,) and, as he approached Munson's barn, saw a man walk up to the end thereof nearest to the witness, gather up some straw which was scattered there, strike a match, and set the straw on fire; that the witness then went up to the man, and by the light of the burning straw saw the defendant, who then had the burning straw in his hands, and he said to the witness, "O, it is you, is it? you have caught me; keep still and say nothing, and I will make it all right with you;" that the witness replied, "You need not be afraid of me, I shall say nothing, I don't like Munson very well myself," and the witness then took the burning straw from the defendant and put it out; that the defendant then said, "These buildings will be burnt by next Saturday night, and, if not, then next Sunday night any way;" that the defendant told the witness to be where he could have plenty of witnesses to prove where he was during those nights, and that after the burning he should give out that he burnt the buildings, and the defendant would make it all right with him; that they then both went away, in different directions, and the witness went directly home to his father's house, where he arrived a little after midnight; that his father got up from his bed and let him into the house, and he went to bed and remained there through the rest of the night.

The witness further testified that the next time he saw the defendant was about the middle of the following week in the village of Great Barrington, and he there gave the witness four ten-dollar bills, and asked if that would do, and told the witness to keep still, and if he got "stuck" it would not be for more than four or five years, and he would make it all right when he got out, and would pay him well for his time; that on the morning of Monday, September 11, the witness heard that the buildings had been burned; that he saw the defendant several weeks after the fire, and he then said, "They have not got us yet, and I guess they never will take us," and that he came near being caught by Munson's hired man, who went past crying fire just as the defendant got to his house, (about a third of a mile off,) and was going in; that he again spoke to the defendant in the following spring, when he was at work at his pease in the garden, and the defendant asked him if he had heard anything yet; and once more when the defendant and one Warner were working on some railroad ties, but could not remember what was said.

In corroboration of this witness, the government called Uriah Surner, (his father,) William Moore, Albert N. Church, Frederick M. Truman, and William Surner, (his brother,) as witnesses. Uriah Surner testified that his son Charles came home to his house at about half past twelve o'clock on the night of September 2, 1876, and he got up from his bed and let him in, and he went to bed. "The defendant objected to the admission of this evidence as immaterial, incompetent, and not admissible to corroborate young Surner, and as not tending to corroborate him in any material point. But the judge admitted the evidence, and the defendant excepted. The judge stated, in making the rulings objected to, in the hearing of the jury, that he should admit the testimony offered by the government, tending to show that young Surner arrived at his father's house that Saturday night about half past twelve o'clock; and that money was seen in his possession at the time stated; especially as it had appeared that he was in 1876 a minor, about eighteen years of age, living with his father, who was apparently entitled to his earnings, and there was no suggestion that the minor had any other means of procuring money; but the jury would be fully instructed that this witness stood in the attitude of an accomplice, upon his own testimony; that it would not be safe or proper for the jury to convict the defendant upon his evidence, unless it was corroborated by other testimony in the case; that all the testimony admitted would be for the consideration of the jury; and that if the jury should find that the testimony of young Surner was corroborated in its material parts by other testimony which they believed, and if they were satisfied, upon the whole testimony, of the guilt of the defendant, beyond a reasonable doubt, they were authorized to find a verdict of guilty, otherwise there should be a verdict of acquittal. And the judge so instructed the jury in his charge, to which no objection was made."

Moore testified that he was at the lecture in the hall in Housatonic on the evening of September 2, 1876, and after the lecture walked around the square and about the village with young Surner, a part of the time in company with two girls whom they found on the street, and separated from him below the Valley House a little after ten o'clock; and the week after the fire saw young Surner have one ten-dollar bill and some other bills the denominations of which Moore did not know. Church testified that about eight or ten days after the fire he saw young Surner have two ten-dollar bills and some other bills, but could not state what they were; that he was with young Surner when the defendant and Warner were at work on railroad ties, and saw the defendant and Surner standing a few feet off, thought they conversed a little, but did not know, nor know what they said. Warner testified that, while he was at work for and with the defendant, near his house, on railroad ties, Church and young Surner passing near by stopped a few minutes, and, after the defendant had scored through one side of a tie, Church hewed it, and the defendant stood a few feet off, and he supposed that the defendant and young Surner spoke together, but did not know anything they said. Truman testified that one or two weeks after the fire he saw young Surner have a ten-dollar bill. William Surner testified that on Sunday, September 10, 1876, he saw his brother Charles at their father's house, and Charles took him to the barn, and there showed him four ten-dollar bills. The defendant objected to the admission of the testimony of each witness, upon the grounds already stated. But the judge admitted the evidence, and the defendant excepted.

The defendant testified in his own behalf, and denied young Surner's statements in regard to the alleged interview on the night of September 2, 1876; denied that he ever saw young Surner at Munson's barn, as he swore, or that he had any consultation there, or that he ever made any plan to burn Munson's buildings, or that he ever did burn them or know anything about it until after they were burnt, or that he ever gave young Surner forty dollars or any other sum of money to keep still, or for any other purpose; and generally and specifically denied all the statements made by young Surner connecting him in any way or manner with the fire.

The jury returned a verdict of guilty; and the defendant alleged exceptions.

Exceptions sustained.

E. M. Wood & W. C. Spaulding, for the defendant.

C. R Train, Attorney General, for the Commonwealth. The only question open on this bill of exceptions is, Was the evidence, introduced by the government in corroboration of the accomplice, legally corroborative?

Corroborative evidence is any evidence which properly induces the belief that the facts testified to by the accomplice are true. Joy on Accomplices, 68, 98. The King v. Jones, 31 Howell's State Trials, 251, 325. Thompson, B., in 31 Howell's State Trials, 967, 980. Such evidence must corroborate some material portion of the accomplice's testimony. Commonwealth v. Bosworth, 22 Pick. 397. Material testimony is such testimony as may properly influence the result of the trial. 2 Bouvier Law Dict. Materiality. 1 Stark. Ev. (4th ed.) 822. Melhuish v. Collier, 15 Q. B. 878. Commonwealth v. Merriam, 14 Pick. 518.

The testimony of the accomplice was competent. Commonwealth v. McCarthy, 119 Mass. 354. Commonwealth v Choate, 105 Mass. 451. If every part of the testimony of the accomplice was not in the first instance material to the issue, yet all of it having been admitted without objection, and denied by the defendant, each part of it became material; and as all the evidence introduced by the government for that purpose was corroborative of some...