Commonwealth v. McCann

• Decision Date: 10 March 1950
• Citation: 91 N.E.2d 214,325 Mass. 510
• Parties: COMMONWEALTH v. McCANN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 510

91 N.E.2d 214

COMMONWEALTH v. McCANN.

Supreme Judicial Court of Massachusetts, Worcester.

March 10, 1950

Argued Feb. 6 1950.

A B. Cenedella, Dist. Atty., Milford, A. A. Gelinas, Asst Dist. Atty., Fitchburg, for plaintiff.

J. S. Derham Northampton, W. T. Buckley, Worcester, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

RONAN, Justice.

The defendant, who was twenty-three years of age, was convicted, of murder in the first degree, of a nine year old girl. Her body was found in a wooden chest in an attic room in the house where the defendant lived, shortly after he had attempted to rape her and then had choked her to death. The only defence offered by the defendant at the trial was that he was insane at the time he committed the alleged offence.

The first assignment of error is to the denial of the defendant's request to see the report made by a police officer who, at the request of the district attorney, had conducted an investigation of those who had been summoned as jurors and to the refusal of the judge to allow counsel to examine the officer. The defendant's counsel had no evidence indicating that the rights of the defendant were in any way prejudiced by the investigation, and he apparently accepted as true the statement of the district attorney that the police officer did not approach or talk with any prospective jurors. A list of those who had been summoned as jurors was available to counsel. G.L.(Ter.Ed.) c. 277, § 66. Each juror before his selection had been examined under oath by the judge and had answered that he was not conscious of any bias or prejudice. Commonwealth v. Lee, 324 Mass 714, 88 N.E.2d 713. It has frequently been held that there was no error of law in the denial of requests similar to those made in the instant case. We need not repeat what was said in those decisions. Commonwealth v. Cero, 264 Mass. 264, 272-276, 162 N.E. 349; Commonwealth v. Millen, 289 Mass. 441, 475-476, 194 N.E. 463; Commonwealth v. DiStasio, 294 Mass. 273, 1 N.E.2d 189; Commonwealth v. Sherman, 294 Mass. 379, 384-386, 2 N.E.2d 477.

The second assignment of error assails the exclusion of evidence on the cross-examination of Dr. Flower, the superintendent of the Worcester State Hospital, where the defendant had been confined from June 16, 1949, to July 19, 1949, in accordance with an order of the Superior Court made under G.L. (Ter.Ed.) c. 123, § 100. Dr. Flower and Dr. Inman filed a report in accordance with G.L. (Ter.Ed.) c. 123, § 100A, as amended by St.1941, c. 194, § 11, that the defendant was not suffering from any mental disease which would affect his criminal responsibility. Both these physicians testified to this effect at the trial. The defendant while at this hospital had been observed by approximately twenty physicians comprising the staff, and a staff meeting was held at which the defendant's case was fully discussed before a final report was made. Dr. Flower was asked on cross-examination if he had discussed with Mrs. McCann as to whether or not the hospital staff had difficulty in making a decision on the sanity or insanity of the defendant. The question was excluded subject to the defendant's exception. The defendant made an offer of proof that the witness told Mrs. McCann that the staff had considerable difficulty in determining whether the defendant was sane or insane, and that the witness was of the opinion that the defendant was not at that time one hundred per cent insane but would definitely become insane in a short time. While no offer of proof was necessary, Stevens v. William S. Howe Co., 275 Mass. 398, 402, 176 N.E. 208; Commonwealth v. Rudnick, 318 Mass. 45, 56, 60 N.E.2d 353, it is to be noted that the last part of the offer goes beyond the scope of the question and the ruling cannot be construed as excluding evidence that the witness had told Mrs. McCann that the defendant was not one hundred per cent insane but soon would be. That question was not then before the judge. Hallwood Cash Register Co. v. Prouty, 196 Mass. 313, 315, 82 N.E. 6; Commonwealth v. Doyle, 323 Mass. 633, 637, 84 N.E.2d 20; Hale v. Dodge, 324 Mass. 51, 84 N.E.2d 464. Passing such matters, it is necessary to observe the posture of this cross-examination at the time the ruling was made. The ruling had been preceded by a long series of questions which were directed to affecting the credibility of the witness. The judge had properly ruled that counsel could show anything contrary to what the witness had testified, and stated that if 'Mrs. McCann is prepared to testify that the doctor told her something which was contrary to his testimony, I will let you go into it.' During the series of questions just mentioned, the witness was asked whether he told Mrs. McCann that the defendant was not one hundred per cent insane but that he was abnormal in many ways, and that he knew the defendant would in time become definitely insane. He first replied that he did not recall making precisely that statement to her. He then subsequently answered that he could not answer that question by a yes or no answer. He finally replied that he did not make such a statement to her. Consequently it is plain that the witness had denied making the statement attributed to him in the last part of the offer of proof and that the matter contained in that part of the offer had already been testified to by the witness. The ruling, insofar as that part of the offer is concerned, amounted to no more than a refusal to permit a repetition of the same testimony by the same witness does not constitute error. Commonwealth v. Shea, 323 Mass. 406, 416, 417, 82 N.E.2d 511; Commonwealth v. Lee, 324 Mass. 714, 719, 88 N.E.2d 713. The way was open to introduce the evidence of Mrs. McCann that the witness had told her that the defendant was not one hundred per cent insane if it was thought such evidence would aid the defendant. No such evidence was offered.

We pass now to the only matter that the judge ruled upon by excluding the evidence concerning the alleged difficulty of the hospital staff in reaching a conclusion as to the defendant's insanity. The witness had expressed his own individual opinion that the defendant was sane. The fact, if it was a fact, that some one of the twenty members of the hospital staff might have had a different opinion or that the staff might have experienced difficulty in reaching its final conclusion that the defendant was sane or that the witness told Mrs. McCann about this difficulty, in no way tended to contradict the opinion of the witness given at the trial, and there was no error in excluding the evidence which was offered solely for that purpose. See Phillips v. Inhabitants of Marblehead, 148 Mass. 326,...