Commonwealth v. Millen

• Decision Date: 14 February 1935
• Citation: 194 N.E. 463,289 Mass. 441
• Parties: COMMONWEALTH v. MILLEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

289 Mass. 441

194 N.E. 463

COMMONWEALTH v. MILLEN et al.

Supreme Judicial Court of Massachusetts, Norfolk.

February 14, 1935

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error to Superior Court, Norfolk County; Brown, Judge.

Murton Millen and others were convicted of murder in the first degree. On assignments of error.

Judgments on the verdicts.

E. R. Dewing, Dist. Atty., of Boston, G. W. Arbuckle, of Quincy, and R. G. Clark, Jr., Asst. Dist. Atty., of Brockton, for the Commonwealth.

G. S. Harvey, of Boston, for defendants Millen.

W. R. Scharton, of Boston, for defendant, Faber.

CROSBY, Justice.

These defendants on February 28, 1934, were indicted for the murder of Forbes A. McLeod, a police officer of the town of Needham, in the county of Norfolk in this commonwealth, on February 2, 1934, and each of them was convicted of murder in the first degree after a trial which began on April 16, 1934, and ended on June 9, 1934.

The indictment was in two counts, which were different descriptions of the same acts. It was the contention of the commonwealth that the alleged murder was committed by the defendants while they were engaged in robbing the Needham Trust Company, in needham, on February 2, 1934.

In view of the voluminous character of the record it would not be practicable to recite all the facts contained therein, but those most important may be summarized as follows: On February 2, 1934, at about 9:30 o'clock in the forenoon, the three defendants came to the trust company in a Packard automobile operated by the defendant Murton Millen. Each defendant was armed and one of them wore a mask. They went into the trust company. The defendant Faber carried a shot gun which he fired wounding one Bartholomew, who was employed by the company as a guard. The defendant Irving Millen fired an automatic pistol while taking money from the cashier's cage. The defendants took from the trust company about $15,000. An employee of the trust company caused an alarm bell outside the building to ring, and officer McLeod, who was on duty near the building and heard the alarm, hastened toward the bank. Murton Millen, armed with a machine gun, fired through a window and shot McLeod, three bullets striking him and causing his death within a few hours. The defendants then entered the automobile which was operated by Murton Millen, and drove away, compelling Arnold Mackintosh, the treasurer of the bank, and John Riordan, the teller, to go with them by standing on the running board. After going a short distance Riordan jumped off, and when he did so was fired upon by the defendants.

As a result of a telephone call one Salamone, a lieutenant of the fire department, was talking with officer Haddock, and the Packard automobile operated by Murton Millen, in which the two other defendants were riding, came down the highway in front of the Needham fire station going in the direction of Boston; when in the vicinity of the fire station the machine gun was fired by Murton Millen, two of the bullets striking Haddock and killing him, and other bullets striking one Coughlin, a member of the Needham fire department, who was standing nearby. The defendants continued on for several hundred yards beyond the fire station when the automobile slowed down and Mackintosh jumped from the running board. On February 7, 1934, this Packard automobile was found in the town of Norwood. It had been partly burned and the number plates removed, and there was other evidence that an attempt had been made to destroy its identity. The storage battery showed that it had been recently repaired. There was evidence introduced at the trial that the defendants Millen previously had possession of this battery and that they had taken it to a certain shop to be repaired. As a result of this information the police learned that Murton Millen was living in Boston.

There was evidence as follows: After the murder of McLeod and the robbery of the Needham Trust Company, Murton Millen, accompanied by his wife, Norma Millen, went to New York City. Thereafter, on February 13, he engaged an apartment in Boston under the name of Harry Clifton. On February 16, 1934, he and his wife and Irving Millen went to New York and talked with one Messinger, and told him that the police of Massachusetts were looking for them. On February 19, 1934, Murton Millen, Irving Millen, and Norma Millen went to Washington, D. C., and Murton Millen, at a parcel room in a railroad station there, checked a suit case containing a machine gun, later identified as having been the gun from which the bullets were fired that caused the death of Forbes A. McLeod. In the same parcel room a suit case had been checked containing five twenty-two calibre automatic pistols; one of these was later identified as being the pistol from which had been fired a bullet found in the Needham Trust Company. The defendants Murton Millen and Irving Millen lived in Washington under the name of Murt Nelson and Brudge Nelson, and under these assumed names they hired a safety deposit vault in the Hamilton National Bank in that city. On or about February 28, 1934, there was taken by the police from that vault approximately $4,730 which was identified as money stolen from the Needham Trust Company on February 2, 1934. On February 25, 1934, Murton Millen was arrested in a hotel in New York City, and in that city in an automobile registered under the name of Murton Millen a loaded revolver was found. When being placed under arrest he struggled with the police officer and endeavored to wrest from his possession the officer's revolver. Irving Millen was arrested on the same day in the same hotel, and in his overcoat pocket at the time of his arrest a loaded thirty-two calibre automatic revolver was found. Following the arrest of these two defendants money was found on their persons which was identified as having been stolen from the Needham Trust Company on February 2, 1934. On the person of Murton Millen there was a baggage room check for the suit case in Washington in which was the machine gun hereinbefore referred to, and on the person of Irving Millen another baggage room check was found for the suit case containing the automatic pistols above referred to.

There was evidence that on February 25, 1934, the defendant Abraham Faber was interviewed by certain members of the state police and thereafter he went with two officers to a garage, in Boston, from which were recovered guns, ammunition and dynamite; that this garage was referred to in a letter signed by Murton Millen and addressed to Faber; this letter was introduced in evidence. There was further evidence that on March 1, 1934, one Rose Knellar, who testified at the trial and who was engaged to be married to Faber, through her attorney telephoned to General Needham of the Massachusetts department of public safety, as a result of which he conferred with this witness and her attorney and at that time she delivered to him two packages of money, which she testified were given to her by the defendant Faber on February 10, 1934; some of this money was identified as having been stolen from the Needham Trust Company on February 2, 1934. There was evidence of a statement made by Faber to two members of the state police, a part of which is contained in a typewritten statement signed by Faber and marked as an exhibit which purports to be a recital by Faber of his participation in the robbery of the bank, and also with reference to his going to Norwood on February 6, 1934, when the Packard automobile used in connection with the robbery was set on fire. There was other evidence relating to the robbery and to the death of Officer McLeod which need not be further referred to.

On March 21, 1934, the defendants Murton Millen and Irving Millen each filed a special plea that he was not guilty, by reason of insanity. At the trial several experts on insanity who were called by the commonwealth testified that in their opinion the defendants were not insane at the time the alleged crime was committed or at the time of the trial. Several other experts on insanity called by the defendants testified that in their opinion the defendants were insane at the time the alleged crime was committed and at the time of the trial. Upon the testimony of all these experts and all the other evidence a question of fact was presented for the determination of the jury. The jury returned a verdict of guilty of murder in the first degree as to each defendant.

The case is before this court on various assignments of error claimed by the defendants Millen, and other assignments of error claimed by the defendant Abraham Faber. Those claimed by the defendants Millen will first be considered. Where the word ‘ defendants' is used it refers only to the defendants Millen.

1. The first assignment of error is that the superior court erred in denying the defendants' request that they be present in court at the hearing held on April 10, 1934, on their motions (1) for a separate trial, (2) for postponement of the trial date, (3) for a change of venue, and (4) for a trial without a jury. It is argued that the denial of their request constituted a denial of ‘ due process' under the Fourteenth Amendment of the Constitution of the United States, that it violated part 1, art. 12 of the Constitution of this commonwealth, which gives every subject a right ‘ to produce all proofs, that may be favorable to him to meet the witnesses against him face to face * * *’ and was error upon the broader ground that they were entitled to be present at all stages of the proceedings against them from the time of their indictment to their conviction. As the wording of the first...