Commonwealth v. Mabey
| Decision Date | 27 December 1937 |
| Parties | COMMONWEALTH v. STEPHEN L. MABEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 4, 1937.
Present: RUGG, C.
J., FIELD, DONAHUE LUMMUS, & QUA, JJ.
Practice, Criminal Confession, Mistrial. Evidence, Confession; Opinion: expert.
A trial judge's decision to admit in evidence, after a preliminary hearing an alleged confession by one indicted for murder, disclosed no error even if the alleged confession was made during a period of undue delay in bringing the defendant to trial, the defendant was not warned that anything he might say might be used against him, and police officers previous thereto had advised the defendant that he tell the truth and that "it was better for him to tell the whole truth."
After an alleged confession by a defendant on trial for murder had been admitted in evidence following a preliminary hearing by the trial judge, the defendant could not require the judge to review such decision on a motion for a directed verdict at the close of the evidence.
The mere facts that during the course of a trial for murder the jury communicated with the judge suggesting a later closing hour, and that the foreman in a conference at the bench with the judge stated "We are beginning to get kind of jumpy" and "are just dying to get out," did not require the granting of a request that a mistrial be declared.
No prejudicial error appeared in the admission at the trial of an indictment for murder of certain questions to and answers by the defendant which led up to an alleged confession.
It was proper on cross-examination of an expert witness to exclude a question based upon a supposititious fact contrary to all the evidence at the trial.
The admission of the opinion of an expert witness, based upon the testimony of a previous expert and upon his own investigation of facts, was proper although not in answer to a question hypothetical in form.
INDICTMENT for murder, found and returned to the Superior Court on March 12, 1936.
The indictment was tried before Fosdick, J. The defendant was found guilty of murder in the second degree and filed an appeal with assignments of error.
J. M. Boyle, for the defendant. F. T. Doyle, Assistant District Attorney, for the Commonwealth.
On Sunday evening, January 26, 1936, Mildred L. 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. 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. DiStasio, 294 Mass. 273 , 284. 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. 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. Coghlan v. White, 236 Mass. 165 , 168. Commonwealth v. Sherman, 294 Mass. 379, 395. See also Commonwealth v. Tuckerman, 10 Gray, 173; 2 Wigmore, Evidence (2d ed.) Sections 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...
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