Commonwealth v. Lee
| Decision Date | 07 November 1949 |
| Citation | 324 Mass. 714,88 N.E.2d 713 |
| Parties | COMMONWEALTH v. EDWARD H. LEE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 5, 1949.
Present: QUA, C.
J., RONAN, WILKINS SPALDING, & COUNIHAN, JJ.
Practice, Criminal Continuance, Examination of jurors, Preliminary question, New trial, Requests, rulings and instructions. Jury and Jurors. Evidence, Photograph, Relevancy and materiality, Competency Cumulative, Admissions and confessions.
On the record there was no failure by a trial judge to exercise his own individual judgment, nor abuse of discretion, in his denial of a motion by a defendant charged with murder for a continuance to enable him to secure the attendance of a certain witness.
A judge presiding at the trial of an indictment for murder against a colored person having inquired, as prescribed by G. L. (Ter. Ed.) c.
234, Section 28, of those called as jurors whether they were conscious of any bias or prejudice, was not required to grant a request by the defendant that he ask them also whether they had any bias or prejudice against a colored person.
At the trial of an indictment for murder of a storekeeper by shooting him in the head during the perpetration of an armed robbery, there was no error in the admission of photographs of the interior of the store showing also the body of the storekeeper lying on the floor, and of a photograph showing his face.
There was no merit in an objection to the admission of evidence really directed to its weight and not to its competency.
No error appeared in a murder case in the exclusion of testimony of the defendant which was merely a repetition of testimony already given by him.
A judge presiding at a murder trial, in submitting to the jury for their determination on all the evidence the question whether an alleged confession of the defendant was voluntary, might properly inform them that on evidence heard by him in their absence he had found the alleged confession to be voluntary but that his finding was not binding on them.
There was no error in a refusal by a judge, hearing a motion for a new trial of an indictment for murder, to consider certain grounds relating only to matters which were or could have been raised at the trial.
On the record, there was no error nor abuse of discretion in the denial of a motion for a new trial of an indictment for murder grounded on alleged derogatory remarks concerning the defendant made by a relative of the victim in the court room during the trial and an alleged "commotion" created by the defendant as a result of the remarks.
After full and correct instructions to the jury concerning their dealing with an alleged confession of the defendant at a murder trial, the defendant was not entitled as of right to an instruction that
INDICTMENT for murder, found and returned on January 14, 1948. The case was tried in the Superior Court before O'Brien, J.
L. W. Edwards, for the defendant. F. T. Doyle, Assistant District Attorney, for the Commonwealth.
RONAN, J. Nathan Binder, the proprietor of a haberdashery on Columbus Avenue in Boston, was shot and killed in his shop between one and one thirty o'clock on the afternoon of November 17, 1947. Photographs were taken of the interior of the store by the police who arrived soon after the commission of the crime. A cartridge shell was found on the floor about five feet from the body. The drawers of the cash register were open and contained only a few pennies. The bullet which caused the death was later removed from the victim's skull by the medical examiner and turned over to the police. The defendant was arrested about eleven o'clock on the evening of November 27, 1947, Thanksgiving day. An unloaded automatic revolver of German make and a clip containing four cartridges of a certain manufacture were found in his pockets.
There was evidence that this revolver, the clip of cartridges, and a rifle had been stolen on November 9, 1947, from the laundry of one Yee; that the shell found on the floor of Binder's shop was of the same manufacture as the cartridges found on the defendant at the time of his arrest; and that the bullet which killed Binder came from this shell and was discharged from the revolver which the defendant had when arrested. There was also testimony that the defendant was a substitute cook on a Pullman diner; that he had signed up for work at eight thirty o'clock on the morning of November 17, 1947; that he spent the rest of his time up to twelve forty-five in the afternoon drinking with others in various taverns in the general vicinity of Binder's shop; that he reported to the railroad office at a little after two o'clock and was assigned to a train to Albany which left Boston at four fifty o'clock in the afternoon; and that he arrived in Boston on November 18, 1947, on the return trip of this train.
He was interrogated by the police subsequent to his arrest and made conflicting statements, and finally stated that he committed the homicide. He contended that he was induced to make these statements and his acknowledgement of guilt by coercion and fear generated by the police. The judge after hearing the evidence found that the statements were voluntarily and freely made, and permitted them to be introduced in evidence.
The defendant was convicted of murder in the first degree and has appealed, assigning various errors of law.
The first assignment of error is based upon the denial of a motion for a continuance in order to enable the defendant to secure the attendance of one Davis as a witness. The defendant contends that he was given the revolver by Davis a few hours before the defendant's arrest and was to return it to Davis the following morning. He made such a statement to the police following his arrest, and a thorough but unsuccessful search was conducted by the police to locate Davis up to a time when the defendant changed his story and stated that he had obtained the revolver when he broke into and entered the Chinese laundry. Counsel was originally assigned in January, 1948, and present counsel was assigned on March 15, 1948. The trial commenced on May 24, 1948. So far as appears, there is nothing to show what Davis would testify to if he were called as a witness, or that his testimony would be of any benefit to the defendant. Neither does it appear from the evidence that counsel for the defendant had made any effort to locate Davis or to obtain a statement from him. There was nothing to indicate when Davis might be located or, if he were, that he would ever be called as a witness by the defendant. In these circumstances, it cannot be said that there was any abuse of sound judicial discretion in refusing to continue the trial. See Commonwealth v. Drake, 124 Mass. 21 , 24; Noble v. Mead-Morrison Manuf. Co. 237 Mass. 5 , 16; Commonwealth v. Friedman, 256 Mass. 214, 216; Commonwealth v. Soaris, 275 Mass. 291 , 297. There is nothing in the contention that the trial judge in denying the motion was merely following the decision of the Chief Justice of the Superior Court who denied a similar motion previous to the trial, and that the judge did not exercise his own individual judgment in refusing to grant a continuance. Commonwealth v. Dyer, 243 Mass. 472 , 507. Commonwealth v. Dies, 248 Mass. 482 , 488.
The second assignment of error is to the refusal of the judge during the examination of those called as jurors to inquire whether they had any bias or prejudice against one who was a member of the colored race. The defendant was a colored man. The judge had inquired of each prospective juror if he was conscious of any bias or prejudice, and all who were selected answered the inquiry in the negative. The inquiry put to the prospective jurors was broad enough to include the inquiry proposed by the defendant. The judge was not required to grant the request, and it cannot be said that, having inquired of the persons called as jurors concerning all the matters prescribed by G. L. (Ter. Ed.) c. 234, Section 28, [1] there was any abuse of discretion by the judge in refusing to put the additional inquiry. Commonwealth v. Poisson, 157 Mass. 510 , 512. Commonwealth v. Millen, 289 Mass. 441, 475. Commonwealth v. DiStasio, 294 Mass. 273 , 280.
The third assignment of error presents the question whether there was error in the admission of four photographs of the interior of the store which were taken shortly after the murder and a fifth photograph showing the face of the victim. The four photographs showed the body lying on the floor, various pools of blood, the show cases, and many other articles which were frequently mentioned in the testimony. The specific objection to all these photographs was that they tended to arouse the emotions of the jury to the prejudice of the defendant, and that, as the Commonwealth was not seeking a conviction on the ground that the murder was committed with atrocity and extreme cruelty, the photographs ought not to have been admitted in evidence. We cannot say, however, that they did not assist the Commonwealth in its contention that murder in the first degree was committed in the perpetration of armed robbery. The four photographs could doubtless be found to aid the jury in understanding better the oral testimony describing the interior arrangement of the store and the relative position of the various fixtures, the position of the body, and other details of the scene of the homicide. The fifth photograph could be found to be of...
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State v. Bridges
...v. Marshall, 338 Mass. 460, 155 N.E.2d 798, 800 (1959), as follows: 'That practice has been referred to in Commonwealth v. Lee, 324 Mass. 714, 720, 88 N.E.2d 713, as a 'humane practice,' giving the defendant two chances: first before the presiding judge who may decide to exclude the stateme......