Commonwealth v. Millen

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtLUMMUS, Justice.
Citation195 N.E. 541,290 Mass. 406
Decision Date18 April 1935

290 Mass. 406

195 N.E. 541

MILLEN et al.

Supreme Judicial Court of Massachusetts, Norfolk.

April 18, 1935

Murton Millen and others were convicted of murder in the first degree, and they appeal.


[195 N.E. 542] Appeal from Superior Court, Norfolk County; Brown, Judge. [290 Mass. 407]

G. S. Harvey, of Boston, for the appellants.

E. R. Dewing, Dist. Atty., of Boston, and O. V. Fortier, Asst. Dist. Atty., of Brockton, for the Commonwealth.

LUMMUS, Justice.

The defendants were found guilty of murder in the first degree, and on appeal this court, on February 14, 1935, ordered judgments on the verdicts. Commonwealth v. Millen (Mass.) 194 N.E. 463. On February 26, 1935, the defendants Murton Millen and Irving Millen filed motions for a new trial, raising the questions now to be considered. These motions were heard and denied on that same day, subject to the exceptions of these defendants. Thereafter on the same day sentence of death was pronounced upon these defendants, subject to their exceptions, the sentence to be executed during the week of April 28, 1935, in accordance with G. L. (Ter. Ed.) c. 279, § 43. The cases come here again by appeal, with a summary of the record, a transcript of the evidence, and an assignment of errors, under G. L. (Ter. Ed.) c. 278, §§ 33A-33G.

1. The defendants contend that the judge erred in denying a new trial asked upon the following grounds (1) that the defendants were not shown to be sane at the time of the deed, a point dealt with in part 21 of the earlier opinion; (2) that the spectators applauded a statement by a witness named Myerson, a point dealt with in part 3 of the earlier opinion; (3) that a witness named Shattuck [290 Mass. 408] was arrested during the trial, a point dealt with in part 3 of the earlier opinion; (4) that the trial was had notwithstanding their petitions for removal to a federal court and the pendency of their petitions in a federal court for a writ of habeas corpus cum causa, a point dealt with in part 5 of the earlier opinion.

These matters are no longer open.‘ A tribunal cannot ordinarily be required to [195 N.E. 543] reconsider upon the same evidence its decision of fact or law.’ Nerbonne v. New England Steamship Co. (Mass.) 193 N.E. 72.

The trial judge had ruled upon all these points at the trial. He was not bound to consider, upon motions for a new trial, questions which had been raised, or could have been raised, at the trial. Commonwealth v. Dascalakis, 246 Mass. 12, 24, 25, 140 N.E. 470; Commonwealth v. Vallarelli, 273 Mass. 240, 248, 173 N.E. 582; Commonwealth v. Polian (Mass.) 193 N.E. 68; Nerbonne v. New England Steamship Co. (Mass.) 193 N.E. 72. The simple denial of the motions shows no intention on the part of the judge to exercise discretion in favor of opening for consideration anew questions already decided ( Commonwealth v. McKnight [Mass.] 195 N.E. 499), even if he had any right to reopen questions of law determined by our earlier opinion on appeal. Taylor v. Pierce Brothers, Ltd., 220 Mass. 254, 107 N.E. 947; Handy v. Miner, 265 Mass. 226, 163 N.E. 881; In re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414. Moreover, if such questions could have been reopened by the judge on the motion for a new trial, and if he had decided them anew, we would not be required to reconsider them, after dealing with them in our earlier opinion, with which we remain satisfied.

2. The defendants contend that undignified conduct on the part of deputy sheriffs in charge of the jury on May 14, 1934, during the trial, when the jury were sent on a recreational journey and dined at a hotel, entitled the defendants to a new trial. The same point was presented by the defendant Faber, who was tried with these defendants, upon a motion for new trial filed as early as July 17, 1934. The denial of a new trial to the defendant Faber was sustained in [290 Mass. 409] dealing with Faber's assignment of error No. 33 in the earlier opinion. There was nothing to indicate that the conduct in question prejudiced, or could have prejudiced, the defendants. The judge was right in refusing a new trial upon this ground. We have not considered whether it was not the duty of the defendants to take the point during the trial.

3. Affidavits and the declarations of counsel in support of the motions for new trial asserted that a microphone was installed in the court room, near the jury box and the witness stand, with wires leading to a room in the basement, occupied by newspaper reporters, in which there was an amplifier or loud speaker. This, it was declared, enabled words spoken in the court room to be readily heard in the basement, and also outside the building if the windows should be open. It was asserted that when the verdict was taken the windows were open, the court house was surrounded by a throng of people who heard the foreman when he reported the verdict, and who raised shouts of approval, which the jury heard, before the jury were polled.

The existence of a microphone with wires leading to an amplifier or loud speaker in the basement for the use of newspaper reporters has not been denied in argument. Whether such a device ought to have been permitted at all is not before us. Counsel for the defendants admits that he knew of it in ample season to inform the judge or to make objection, and that he did neither. It was obvious to him that that device might enable news of the verdict to be conveyed almost instantly from the reporters' room to persons outside the court house. The defendants cannot complain that the judge did not of his own motion guard against that possibility, when their own counsel, who knew of the device, did nothing. At the time of the shouts of approval, the jury had already arrived at their verdict and were reporting it. Although the incident was unfortunate, and care should be taken in future cases to guard against a repetition of it, the judge might well find from his own observation and knowledge that the shouts did [290 Mass. 410] not affect the answers made when the jury were polled. See Commonwealth v. Sacco, 259 Mass. 128, 140, 156 N.E. 57. He was not required to grant a new trial on this ground.

4. As to the assertions in the affidavits tending to show that the people surrounding the court house during the deliberations of the jury and the return of the verdict were in an inflamed mental state, and that their presence and conduct intimidated the jury (Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543), the judge not only refused to accept those assertions as true but declared that some unspecified statements in the affidavits were ‘ fanciful.’ Oral evidence in support of the affidavits was offered. A party has no right to insist that oral evidence be heard upon a motion. He may be required to present the evidence upon affidavits alone. Manning v. Boston Elevated Railway Co., 187 Mass. 496, 498, 73 N.E. 645; Scott v. Bevilacqua, 226 Mass. 554, 559, 116 N.E. 563; Universal Adjustment Corp. v. Midland Bank, Ltd., of London, 281 Mass. 303, 307, 184 N.E. 152, 87 A.L.R. 1407; Goodwin v. Blanchard, 73 N.H. 550, 64 A. 22.Rule 46 of the Superior Court (1932). A [195 N.E. 544] judge is no more bound to accept as true...

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