Commonwealth v. Mercier

• Decision Date: 30 October 1926
• Citation: 257 Mass. 353
• Parties: COMMONWEALTH v. LOUIS MERCIER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 353

COMMONWEALTH v. LOUIS MERCIER.

Supreme Judicial Court of Massachusetts, Berkshire.

October 30, 1926

September 21, 1926.

Present: RUGG, C.

J., CROSBY CARROLL, WAIT, & SANDERSON, JJ.

Homicide. Practice Criminal, Postponement of trial, Common Law Rule 24 of the Superior Court (1923), View, Opening statement by district attorney, Closing argument by district attorney, Exceptions.

Pleading, Criminal Bill of particulars. Evidence, Competency, Relevancy and materiality.

The provisions of Common Law Rule 24 of the Superior Court (1923) do not prevent a granting by a judge of the Superior Court of a postponement of a trial of an indictment for murder from a date to which it had been assigned to a later date for cause orally shown by the district attorney and without the filing by him of the affidavit described in the rule.

It was within the discretionary power of the judge presiding at the trial of an indictment charging murder by a deadly poison to refuse to grant a motion for particulars specifying the name of the deadly poison relied on by the Commonwealth as causing the death.

It was not error for the judge presiding at the trial of an indictment, after instructing the jury, who were about to take a view, that the view must be conducted in accordance with the oath administered to the officers under which they were permitted to view the premises together with any marks or objects thereon or relating thereto which might be pointed out by counsel named in the oath, further to state to the jury that what they would see on the view would be competent evidence for them to consider.

It was not error to permit the district attorney in his opening statement at the trial of an indictment to state the substance of conversations with the defendant in the district attorney's presence which would be proved by witnesses to be called.

At the trial of an indictment charging murder by poisoning, where evidence of the Commonwealth tended to show that the poison which caused the death was a cyanide which was found in the body of the deceased at an autopsy performed after the body was embalmed, it was proper to permit the Commonwealth, in order to show that the embalming fluid contained no cyanide, to introduce in evidence bottles of embalming fluid, together with evidence that, if such fluid were not part of the same fluid used in embalming the body of the deceased, "It was the same fluid, the same formula" and that all embalming fluids were the same thing.

At the trial of an indictment charging murder of a woman, it was within the discretionary power of the judge in the course of the cross-examination of a chief of police who, at a preliminary hearing in a district court, had testified as to a conversation he had with the defendant after the homicide, to exclude questions, whether there were some material additions to the testimony as given by him in the District Court, what he had said on the stand that he did not say in the District Court, and whether he testified in the District Court that the defendant told him he had deserted his wife; where it appeared that the witness had been cross-examined at length on the subject of his testimony in the District

Court defendant's counsel during such cross-examination having in his hands a transcript of the evidence there, and that the witness had testified that there were many things said to him by the defendant in the conversation, which lasted several hours, which were omitted from his testimony in that court, that many questions were asked by counsel in that court, and that he did not then go into details as he had done at the trial.

At the trial of an indictment charging murder of a woman, the defendant's wife, much must be left to the discretion of the trial judge as to the admissibility of evidence to prove that the defendant had a motive for the killing, and it is not necessary that each piece of evidence to be admissible should be sufficient standing alone to prove a motive: it is enough that it has some probative value.

At the trial of an indictment charging murder in Pittsfield on February 13 of the defendant's wife, there was evidence for the Commonwealth showing that the defendant in the spring preceding the crime had been in

Lawrence for several weeks and also had been there just before Christmas, less than two months before the crime, after he had been discharged from employment in Pittsfield; that as to the second occasion he first had told the chief of police at Pittsfield after the crime that he had taken his wife and family with him and later had said to the chief of police that he went alone; and that just before the murder he had said to another person that he had one "girl." in Pittsfield and in

Lawrence a woman with whom he was intimate while her husband worked nights. A brother-in-law of the defendant testified that the defendant had said to him at the time of the Christmas visit in Lawrence that everything was going better; that his folks gave him all his furniture and that he had brought a coat for the witness's sister. Subject to an exception by the defendant, the brother-in-law was permitted to state that the defendant told him he went to Lawrence after "booze," that he made a few cents on it and wanted to make a few cents more; that he wanted to make money in "booze." Held, that

(1) The evidence excepted to was admissible within the discretion of the trial judge;

(2) The evidence being material, the mere fact that it disclosed participation by the defendant in another crime did not make it incompetent;

(3) In this case, in so far as the evidence tended to prove another crime, the defendant was protected by instructions given by the judge in his charge to the effect that the fact that a person had committed a crime is not evidence that he committed any other crime.

At the trial of an indictment for murder, evidence, that while in prison saws such as might be used in cutting prison bars were found sewed into the defendant's trousers when a search of his prison cell was made, was admissible as tending to show consciousness of guilt in connection with testimony by the defendant that he received the saws while in prison and sewed them into his clothing fearing that if they were found people might think he was trying to escape.

At the trial of an indictment, after witnesses for the Commonwealth had been subjected to cross-examination respecting testimony by them at a preliminary hearing in a district court, it is proper for the judge to allow the district attorney in rebuttal to put in all that the witnesses said in the District Court on the subject to which the defendant's questions were directed in order to clear up any erroneous impression which might have been made on the jury by those questions or the form in which they were phrased; in so far as any material testimony was then first introduced by the district attorney's questions, it was within the judge's discretion to admit such evidence at that time.

At the trial of the indictment above described, it appeared that a toxicologist had examined the stomach of the deceased with a view to determining whether there was evidence of poison and, if so, of what poison. Subject to exception by the defendant, he was asked and was permitted to answer the questions: "Have you any question that the poison that killed this woman was cyanide of potassium?" and "Is there any question in your mind but that hydrocyanic acid was the cause of her death, in this case?" In cross-examination by the defendant, the witness stated that the way he wanted to leave the matter was that, assuming that the stomach examined by him came from the body of the deceased, then in his opinion she died from the effect of a cyanide and hydrocyanic acid. Held, that

(1) The exception must be overruled, since it was apparent from the whole examination of the witness that he intended to testify to the cause of death of the person whose stomach he examined and that he did not intend to give testimony to the effect that the stomach which he examined was that of the woman for whose death the defendant was being tried, and it did not seem likely that the jury could have understood the questions and answers in any other sense;

(2) If error were committed in the admission of the questions, it was cured by the testimony of the witness under cross-examination.

In cross-examination of the medical expert called by the Commonwealth, the defendant asked, "So far as the story was given to you of this woman's death . . . it might have been a case of apoplexy?" and answered, "It might, but I don't believe it was." A motion by the defendant to strike out the latter part of the answer was denied. Held, that the denial was proper within the discretion of the judge, as it might well be that a part of the answer would not fairly state the witness's opinion in answer to the question.

The toxicologist who testified for the Commonwealth at the trial above described, after he had testified in rebuttal that in tests made upon the stomach of the deceased he obtained "a residue with which I tested for the presence of cyanide," was asked by the district attorney, "Which cyanide?" and answered, "Sodium cyanide. By Dr. Howard's testimony it would be shown that the alcohol would remove the ferrocyanide from this extract, so that it could not be present, and if I obtained the test for cyanide, it had to be a soluble cyanide or sodium cyanide." A motion by the defendant to strike out the answer was denied subject to exception by the defendant. Held, that, the answer being in part responsive, the motion properly was denied; if the defendant intended to object to a part of the answer he should have designated the part.

The toxicologist,...