Commonwealth v. Homer

• Decision Date: 18 May 1920
• Citation: 127 N.E. 517,235 Mass. 526
• Parties: COMMONWEALTH v. HOMER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 526

127 N.E. 517

COMMONWEALTH

v.HOMER.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1920.

Exceptions from Superior Court, Suffolk County; Frederick Lawton, Judge.

Joseph Homer was convicted of robbery, and he excepts. Exceptions sustained.Daniel J. Gallagher, Asst. Dist. Atty., and Frederick M. J. Sheenan, Deputy Asst. Dist. Atty., both of Boston, for the Commonwealth.

Thos. J. Kenny, Joseph P. Bell, and John T. Hughes, all of Boston, for defendant.

CARROLL, J.

The defendant was indicted for robbery of jewelry of the value of several thousand dollars from Madge E. Wilbur. There was evidence that the robbery took place in the defendant's room in the Hotel Touraine, Boston, May 12, 1917. At this time Mrs. Wilbur was about 59 years of age and the defendant was about 36 years of age. He was a dentist practicing in Los Angeles, Cal., where they first met and where he did some dental work for her the value of which was in dispute and for which he was not paid. There was much testimony concerning their relations during their stay in California. She admitted they danced together, visited several hotels and had been on automobile trips; and there was evidence which, if believed, tended to show that they had occupied the same room at different hotels. Certain jewelry, namely, a pearl necklace, a diamond collar and brooch, one locket and a watch, had been pledged by Mrs. Wilbur to secure a loan of $3,500; the defendant paid this account on or about April 18, 1917, and these jewels were delivered to him, Mrs. Wilbur giving him a note for $6,530, payable in six months with interest at six per cent. A receipt was made out to her, reciting that the note was given to secure a loan of $3,780 in cash and ‘bill for professional services to the amount of $2,750.00.’

In the spring of 1917, the defendant joined Mrs. Wilbur in Chicago, and they left on the same train for Boston, arriving May 7. Before reaching the Back Bay Station he gave her a package containing $6,520 in cash and the jewels, and said: ‘Take care of these for me.’ She placed the money and the jewel case in the care of the clerk at the Copley-Plaza Hotel where she and her maid were guests. According to her testimony, she returned the money to the defendant on the following day. This was denied by the defendant. He, however, admitted that the jewelry which had been pledged and which he placed in the care of Mrs. Wilbur was returned to him on Wednesday following his arrival in Boston. Between May 7 and May 12 she drove with the defendant to Plymouth Rock, the North Shore, attended Keith's Theatre and visited the Boston Public Library. She testified that on May 12 they met at the Copley-Plaza Hotel about noon and went from there in a taxicab to the Hotel Touraine where she accompanied him to his bedroom; that he then demanded her jewelry, referring to certain jewels which were then in her possession, saying, ‘I want your jewelry; I was a ___ fool for giving it up before, this time I will not give it up;’ that standing before her, he produced a pistol, and told her he had the address of a relative of hers (meaning her brother) and had notified him she was ill in the hotel; that when her brother came he (the defendant) would tell him that she had come there of her own accord, that the brother would find her alone with him in his bedroom, and suggested ‘what * * * [the] brother would think’; that the defendant further said that if her brother made any trouble, he would ‘give him this' (meaning the pistol which was then in sight) and ‘if that don't work I have got another in my pocket in my closet’; that the jewels were then at the Copley-Plaza Hotel and she requested him not to make her send for them, but after a considerable time ‘rather than not have him call * * * [her] brother’ she said to the defendant ‘rather than have you do that, I will give you my jewels'; that she then went to the telephone and called the Copley-Plaza Hotel; that the defendant, holding a pistol in his hand and his arm around her shoulder, said to her, ‘You be careful what you say, but say what I tell you to say:’ that she then wrote, at the dictation of the defendant, a note to her main, inclosing an order to the cashier of the Copley-Plaza Hotel, requesting the delivery of the package of jewels. She further testified that when telephoning the defendant held the pistol to her face; that he called a messenger and sent the note and order to her hotel; that when the maid appeared at the Hotel Touraine Mrs. Wilbur, at the defendant's orders, went into the bathroom, and while there the maid delivered to the defendant the package of jewels, consisting of seven rings, one watch, three pins, one lorgnette, three or four small pins and one earring, together with two small rings which had been taken from a drawer in Mrs. Wilbur's apartments at her direction; that when she came out of the bathroom she found the defendant with the jewels in his hands; that he gave her the lorgnette and ‘a small pin or two,’ and made her take off her earrings and give them to him, and insisted that she write an order giving him permission to sell the jewels; that she protested, saying he had stolen them and she would have him arrested, to which he replied, ‘There is not one chance in a hundred, that you will dare to have me arrested, you are too afraid of the notoriety and your reputation;’ that she then wrote an order authorizing him to sell the jewels and use the money at his own discretion; that when the earrings were taken she asked him to let her go, but he refused, saying, ‘I will take you home; I know what you will do if I let you out, you will have me arrested;’ that about half past 11 that night the defendant went with her in a taxicab to the Copley-Plaza Hotel and on leaving her said, ‘Be careful what you do or say;’ and that he went to New York the same night, where he sold the jewels for $11,500.

The defendant's version was as follows: When the money and jewels were given Mrs. Wilbur on the train, it was understood that she was to return both the money and the jewels on the following day; that on May 12 they met at the Copley-Plaza about 11 o'clock in the morning and went together to the Hotel Touraine; the defendant gave her the key of his room, telling her its location, in about 10 minutes he went to the room and found her there; they remained there from 11:30 in the morning until 11 at night; he at no time had a revolver, during the conversation she said she had not brought the money as she promised, because she wanted to use some of it, and offered him her jewelry. He then left the hotel and was gone three-quarters of an hour. On his return he agreed to accept the jewelry if she would give him a receipt for the money she received from him, and an order to sell the jewelry, to which agreement she assented. He denied that threats of any kind were made, or that he dictated the form of the order, or said anything about her brother. He further testified that in addition to Mrs. Wilbur's maid, three persons came to the room, that twice a waiter brought food, and a messenger boy called; that when the maid rapped at the door, he stepped into the hall, closing the door behind him.

1. The defendant, during the cross-examination of Mrs. Wilbur, sought to discredit her by showing that her evidence before the grand jury was different from that given at the trial and thereafter formal proof was offered of her testimony before the grand jury. This was objected to by the district attorney on the ground that there was no contradiction. The judge excluded the offered evidence. There were several details referred to in the offer, in which it was claimed her evidence was contradictory. Many of these statements were not in fact contradictory, some of them were on immaterial points, and some of the alleged contradictions now relied on, were not specifically called to the attention of the court. But in one respect, at least, there was a direct contradiction concerning an important fact testified to by Mrs. Wilbur. If her evidence were believed, for months while she was in California, she was abused and threatened by the defendant and had lived in fear of him; that when they were together in the Hotel Touraine in Boston, by reason of fear and threatened violence, she gave the jewels to him. In her testimony she several times referred to the pistol which the defendant carried; that she was forced to go the telephone while he held the pistol to her face, that through fear she took the earrings from her ears and gave them to him. This was denied by the defendant. He claimed he came into the possession of the property with her consent and by reason of an arrangement by which she voluntarily surrendered them. In this state of the evidence the possession of a pistol by the defendant was a matter or importance. If he used such a weapon in the manner indicated, the jury might well believe the testimony of Mrs. Wilbur. If he had no such weapon, they might doubt her story and could find that the crime of robbery was not committed. If in relating all the important facts connected with the crime before the grand jury, she said nothing about a pistol, except that the defendant intended to shoot her brother, and made no statement indicating that this weapon was exhibited in her presence, then the defendant had a right to show this contradiction and the jury could consider it as bearing upon an important and significant fact testified to by Mrs. Wilbur. The attention of the court was called to this particular matter, and her evidence before the grand jury in contradiction of the testimony given by her at the trial was admissible. Com. v. Mead, 12 Gray, 167, 71 Am. Dec. 741. See Com. v. Harris, 231 Mass. 584, 586, 121 N. E. 409. This exception of the defendant's must be sustained.

[2] 2. There was sufficient evidence to support the indictment. The jury could find that through fear of the defendant and...