Commonwealth v. Madeiros

• Decision Date: 30 March 1926
• Parties: COMMONWEALTH v. MADEIROS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 304

151 N.E. 297

COMMONWEALTH

v.MADEIROS.

Supreme Judicial Court of Massachusetts, Norfolk.

March 30, 1926.

Exceptions from Superior Court, Norfolk County; H. T. Lummus, Judge.

Celestino Madeiros was convicted of murder, and he excepts. Exceptions sustained.

The following is the court's charge in part:

‘We must now consider what is meant by the crime of murder. Murder is the killing of a human being, without legal justification or excuse, without such extenuation as may reduce the crime to manslaughter, but with what is called in the law ‘malice aforethought.’ This malice aforethought' is a technical expression in the law, which has come down to us from past generations, and needs definition. ‘Malice,’ as used in that expression, does not necessarily imply ill will towards the person killed. Any intentional killing of a human being without legal justification or excuse, with no extenuating circumstances sufficient in law to reduce the crime to manslaughter, is ‘malicious' within the meaning of that expression, and is murder, and not manslaughter. The word ‘aforethought,’ in the expression ‘malice aforethought,’ does not require deliberately premeditated malice or intention to do wrong. If the killing was intentional, though the act followed the thought immediately, without time for deliberation or reflection, and there was no legal justification, excuse, or extenuation, the killing was with ‘malice aforethought’ within the meaning of that very technical and somewhat misleading expression of the law, and is murder, and not manslaughter.

‘A killing may be malicious, and consequently murder, even though the slayer did not wish to cause death. Chief Justice Holmes, in Commonwealth v. Chance, 54 N. E. 551, 174 Mass. 245 , said that ‘knowledge of such circumstances that according to common experience there is a plain and strong likelihood that death will follow the contemplated act’ amounts to a malice in law, where there is no legal justification, excuse, or extenuation for the act. If a man intentionally, and without legal justification, excuse, or extenuation, uses upon the body of another a force (for example, a bullet from a revolver of large caliber) that as used will probably do grievous bodily harm to that other, and will create a plain and strong likelihood that that other will die as a result, the act is malicious within the meaning of the law, even though the doer of that act was indifferent as to whether death would result, or wished and hoped that death would not result.

‘And an unlawful killing may be with ‘malice aforethought,’ within the meaning of that technical phrase, and consequently murder, in some cases where there was no intention to endanger life, or even to injure. Where a defendant is engaged in the commission or attempted commission of some crime of the degree of felony-that is, a crime punishable by death or imprisonment in the state prison-and some act done by him in the commission or attempted commission of such felony results in the death of some person, the killing is with ‘malice aforethought’ within the meaning of the law, and the killing is murder, although the defendant did not intend to kill, or even to harm the deceased. The intention to commit some other felony amounts to ‘malice aforethought,’ making the crime murder. Accordingly a man burning his own building to defraud an insurance company is guilty of murder, if some person happens to perish in the flames. A man who commits rape upon a woman, though he be ever so careful not to hurt her, is guilty of murder, if the horror and shock of the deed in fact cause her death. A burglar who breaks and enters a dwelling house in the nighttime with intent to steal therein, and binds and gags his victim, and thus unintentionally causes his death, is guilty of murder. And so in this case, if the defendant Madeiros was at the time of the shooting engaged in the commission or attempted commission of a felony, and in the course thereof pointed a loaded revolver at Mr. Carpenter for the purpose of intimidating him and facilitating the commission of the felony, and such revolver while so pointed was discharged, and the bullet caused Mr. Carpenter's death, the defendant Madeiros is guilty of murder.

‘What felony, upon the evidence, can the defendant Madeiros be found to have been committing or attempting to commit at the time of the shooting?

‘Stealing is defined in General Laws, c. 277, § 39, as ‘the criminal taking, obtaining or converting of personal property, with intent to defraud or deprive the owner permanently of the use of it.’ And the crime of robbery is defined in General Laws, c. 277, § 39, as follows: ‘The taking and carrying away of personal property of another from his person and against his will, by force and violence, or by assault and putting in fear, with intent to steal.’ Personal property includes money and all other goods, chattels, and property, except interests in real estate. If the defendant Madeiros at the time of the shooting was engaged in an attempt to steal personal property from the person of some one who owned or had the custody of it, against his will, by means of force and violence upon the owner or custodian of it, or by assaulting the owner or custodian of it and putting him in fear, he was attempting to commit the felony of robbery. When I speak of an attempt to steal personal property from the person of any individual, I do not mean that in order to be upon his person within the meaning of the law the property must be in his fingers or in his pocket; it is enough if it was in his immediate protection or control. A thing is upon the person of an individual, so that taking it by force, or assault and putting in fear, may be robbery, if it is so within his reach, inspection, observation, or control that he could, if not overcome by violence or prevented by fear, retain his possession of it. Robbery is a felony under our statutes, being punishable by imprisonment in the state prison.

‘There is another section of our statutes which has a bearing on this case. General Laws, c. 265, § 21, provides as follows, omitting immaterial words: ‘Whoever, with intent to commit larceny or any felony, * * * attempts or threatens to kill * * * main, injure or wound, or puts any person in fear, for the purpose of stealing from a building, bank, safe, vault or other depository of money, bonds or other valuables, * * * shall, whether he succeeds or fails in the perpetration of such larceny or felony, be punished by imprisonment in the state prison for life or for any term of years.’ A violation of this statute, being punishable by imprisonment in the state prison, is a felony.

‘Accordingly, I repeat that, if the defendant Madeiros at the time of the shooting was engaged in the commission or attempted commission of a robbery, or of a violation of General Laws, c. 265, § 21, just read, and in the course thereof pointed a loaded revolver at Mr. Carpenter for the purpose of intimidating him and facilitating the commission of such felony or attempted felony, and such revolver while so pointed was discharged, and the bullet caused Mr. Carpenter's death, the defendant Madeiros is guilty of murder.D. P. Ranney, Asst. Dist. Atty., of Boston, for the commonwealth.

F. J. Squires, of Norwood, for defendant.

RUGG, C. J.

The defendant and three others were indicted jointly for murder. One of the other three has not been apprehended; the cases of two have been disposed of, and the defendant alone was tried.

The court, on the motion of the commonwealth acquiesced in by the defendant, ordered that the jury take a view of the premises where the murder was alleged to have been committed. The prosecuting officer, prior to the view, in his opening, stated that the defendant and his companions in the attempt to rob the Wrentham Bank stole a new Hudson touring car and on the day of the homicide came to the bank in Wrentham in the car, left one of their number sitting in the car at a place on the street described by him and indicated on a chart shown to the jury, while the defendant and the other two entered the bank, where the cashier was alleged to have been murdered by the defendant, and the three returned to the automobile and made their escape. The jury were then taken to the scene of the crime in Wrentham, where the automobile, alleged to have been used by the defendant and his companions in the commission of the crime, had been placed at the point described in the opening. Confessedly this was without the knowledge of the prosecuting officer, at whose request the automobile was removed before anything was said or done to draw the attention of the jury at the view to the automobile or its position, although it was plainly in the sight of the jury....