Commonwealth v. Mabey

• Decision Date: 30 December 1937
• Citation: 299 Mass. 96,12 N.E.2d 61
• Parties: COMMONWEALTH v. MABEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 96

12 N.E.2d 61

COMMONWEALTH

v.MABEY.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 30, 1937.

Stephen L. Mabey was convicted of murder in the second degree at a trial on an indictment for murder, and he appeals with assignments of error.

Affirmed.

Appeal from Superior Court, Suffolk County.

J. M. Boyle, of Boston, for appellant.

F. T. Doyle, Asst. Dist. Atty., of Boston, for Commonwealth.

LUMMUS, Justice.

On Sunday evening, January 26, 1936, Mildred Bosse, aged twenty-eight, wife of Clifford N. Bosse, was found dead in her apartment. Her death was caused by potassium cyanide. The defendant, a man of fifty-five, admittedly had been alone with her in her apartment during the morning, drinking liquor with her. Apparently he was the last person to see her alive. After he was arrested, the defendant told various stories. The first was that the woman was despondent and threatened suicide, and thereupon he went home. The second was that while he was with her she apparently took poison and fell, whereupon he put her body on the bed and went home. The third was that he had bought potassium cyanide for the woman upon her representation that she wished to use it in killing a horse, and had delivered it to her, but that he did not know she had taken it herself until she cried ‘I done it’ and fell; and that he believed her dead when he put her body on the bed and went home. Finally he confessed to police officers that he carried the poison to her apartment and then decided to administer it to her, that he ‘gave it to her in a glass of whiskey’ because he was ‘mad at her’ and jealous of her, and that she did not cry out ‘I done it.’

The first assignment of error assails the admission in evidence of that confession. The defendant testified on the preliminary hearing before the judge, held for the purpose of determining the admissibility of that confession, that confinement had made him hungry, ill and weak, that the officers called him foul names and threatened him with a club, and that these facts caused him to make what statements he did make in order to end the questioning. He denied confessing to murder, but shortly afterwards testified that he had confessed. The judge was not bound to give credit to any of this testimony of the defendant. Commonwealth v. Russ, 232 Mass. 58, 70, 122 N.E. 176. If, as the defendant contends, there was undue delay in bringing him before a court, that would not make inadmissible a confession made during the period of delay. Commonwealth v. Di Stasio, Mass., 1 N.E.2d 189. Neither was the confession inadmissible because the defendant was not warned that anything he might say might be used against him. Commonwealth v. Buck, 285 Mass. 41, 47, 188 N.E. 613. The testimony of the police officers showed no impropriety in the taking of the confession unless certain forms of language used by some of the officers made the confession inadmissible.

The nearest approach to improper inducements held out to the defendant were these words used by some of the police officers at different times in the course of the examination of the defendant at the police station: ‘You are not telling the truth, give us the truth on this'; ‘You might as well tell the truth, to me now’; ‘I advise you to tell the truth in this case’; and the admission by one officer that he told the defendant that ‘it was better for him to tell the whole truth.’ None of these words amount, as matter of law, to a threat or promise or inducement invalidating the confession. The question of fact was for the trial judge. Commonwealth v. Russ, 232 Mass. 58, 69, 122 N.E. 176;Coghlan v. White, 236 Mass. 165, 168, 128 N.E. 33. ‘Whether specific language amounts to a threat or a promise may depend * * * upon the circumstances in which the language is used and on warrantable inferences drawn from the language and circumstances. * * * This is true even of such language as ‘You had better tell the truth.’' Commonwealth v. Sherman, Mass., 2 N.E.2d 477, 485. See, also, Commonwealth v. Tuckerman, 10 Gray 173; 2 Wigmore, Evid., 2d Ed., §§ 832, 838, 840. The context of the words in question is not suggestive of any promise, or any appeal to the defendant that he would serve his own interest by confessing the crime as distinguished from making a full disclosure of the facts in his possession. There was no error of law in the admission in evidence of the confession. The first assignment of error is not sustained.

The confession having lawfully become part of the evidence in the case, subject to the exception of the defendant and to a review by the jury of the facts material to its admissibility, Commonwealth v. Polian, 288 Mass. 494, 498, 193 N.E. 68, 96 A.L.R. 615;Commonwealth v. Sherman, Mass., 2 N.E.2d 477, the defendant at the close of the evidence could not require the judge himself to review his decision that the confession was admissible by asking him to direct a verdict for the defendant on the ground that the confession was inadmissible and that the evidence, without the confession, was insufficient to warrant a verdict of guilty. Nerbonne v. New England Steamship Co., 288 Mass. 508, 510, 193 N.E. 72. Even if the confession had been wholly without corroboration in the other evidence, the case would have been proper for the consideration of the jury. Commonwealth v. Di Stasio, Mass., 1 N.E.2d 189. For these reasons, the seventh assignment of error is not sustained.

On April 14, 1937, during the trial, the jury sent the following note to the judge: ‘In view of the fact that Monday next is a holiday and confinement of our nature at best is trying, though it is our civic duty, may we respectfully request that the day's business be continued to 5.00 p. m., if it does not inconvenience the Court and the other...