Commonwealth v. Martin
| Decision Date | 28 October 1878 |
| Citation | 125 Mass. 394 |
| Parties | Commonwealth v. Owen Martin |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Plymouth. Indictment, in two counts, for manslaughter. The first count charged that the defendant, at Brockton, on May 5, 1878, made an assault upon Jeremiah Kelleher with a hammer, causing the death of Kelleher. The second count alleged that the killing was caused by the defendant "in some way and manner, and by some means, instruments and weapons to the jurors unknown."
At the trial in the Superior Court, before Brigham, C. J., the government introduced evidence tending to show that Kelleher's death was caused by a blow upon the head with a hammer, or with some other weapon or instrument unknown, in the defendant's saloon, when the defendant with other persons was present; and that no one except the defendant was in a situation to do the injury. All the witnesses who testified for the Commonwealth at the trial had also testified before the grand jury which found this indictment upon the same matter.
The defendant introduced evidence tending to show that the wound of which Kelleher died resulted from falling upon the floor or striking against the counter while falling; that such falling was caused by a push given him by the defendant to prevent him from falling backward against the counter, and to save the counter from destruction, and to prevent Kelleher from being injured by so falling; and that no more force was used than was necessary to accomplish such purpose.
The defendant asked the judge to rule that, upon the evidence the jury must be satisfied beyond a reasonable doubt that Kelleher was killed by a blow, or they must return a verdict of not guilty; that the jury, upon the evidence, must return a verdict of not guilty, upon the second count; and that there was a variance between the allegations in the second count and the evidence, and, for that reason, the jury must return a verdict of not guilty on the second count.
The judge declined so to rule, but instructed the jury as follows: "To convict the defendant, there must be evidence, beyond a reasonable doubt, that the defendant did some act of violence to the person of the deceased, which act was neither excusable nor justifiable, and caused the death of the deceased; that if such act of violence was done by the defendant, in the protection of his person or his property when either was in danger of harm from the deceased, and for the purpose of...
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