Commonwealth v. Noxon

• Decision Date: 10 May 1946
• Citation: 319 Mass. 495,66 N.E.2d 814
• Parties: COMMONWEALTH v. JOHN F. NOXON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

319 Mass. 495

66 N.E.2d 814

COMMONWEALTH v. JOHN F. NOXON.

Supreme Judicial Court of Massachusetts, Berkshire.

May 10, 1946

October 23, 24 1945.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & WILKINS, JJ.

Homicide. Practice Criminal, Disclosure of evidence of Commonwealth Discretionary control of evidence; Requests, rulings and instructions; New trial.

Pleading, Criminal, Indictment, Bill of particulars. Evidence, Of consciousness of guilt; Failure to produce evidence; Photograph; Opinion: expert; Relevancy and materiality; Evidence unlawfully obtained; Competency; Experiments; In rebuttal; Presumptions and burden of proof. Witness, Expert witness, Cross-examination. An inference of consciousness of a father of being guilty of murder of his

Mongoloid child by causing a current of electricity to pass through the child's body was warranted from evidence that on the evening of the child's death the defendant had burned certain clothing of the child and an electric cord with exposed wires which, he had stated to a physician whom he had called, had accidentally caused the death, and also from evidence that, when informed that the medical examiner, and, later, the district attorney, were further to interview him, he had made notes respecting circumstances of the death.

Failure of a defendant charged with crime to call his wife, who was available, as a witness in his behalf respecting circumstances known to her, warranted an inference that, if so called, her testimony would be unfavorable to him.

Circumstantial evidence warranted a verdict of guilty at the trial of an indictment against a father for murder of his six months old Mongoloid child by causing a lethal current of electricity to pass through the child's body.

No abuse of discretion nor error appeared in the denial of a motion, by a defendant charged with murder, which in effect sought to compel the

Commonwealth to disclose part of its evidence by allowing the defendant to examine certain articles in its possession and to make certain tests and by furnishing him with certain information and copies of certain documents.

An indictment for murder in the statutory form set forth in G. L. (Ter.

Ed.) c. 277, Section 17, to which were added particulars that the crime was committed by causing a current of electricity to pass through the body of the victim until he was dead furnished ample information as to the nature and grounds of the crime charged; and motions to quash and for further particulars were denied properly.

No error appeared in the circumstances in the admission in evidence, at the trial of an indictment for murder by use of electricity, of certain enlarged photographs and negatives of parts of the body of the victim, of photographic enlargements of specimens of his skin, and of photomicrographs of a cross section of his skin.

Rulings by the judge presiding at the trial of an indictment for murder respecting whether the subject matter of certain questions was proper for opinion evidence, whether qualification of a certain witness as an expert was proved, the form of hypothetical questions to various witnesses admitted to be experts, and the responsiveness of answers to such questions, disclosed no abuse of discretion or other error.

Certain objects of personalty taken from the residence of a defendant on trial for murder of his child in a room in the residence by use of electricity, and certain articles produced by him at the request of the

Commonwealth, were properly admitted in evidence as pertinent to issues involved.

The rule of law established in this Commonwealth, that articles of personalty illegally obtained are admissible in evidence at the trial of a criminal case if they are pertinent to issues there involved, is applicable also to severed realty.

At the trial of an indictment for murder by the use of electricity no abuse of discretion and no error appeared in the admission in evidence of a model of an electric cord which had been destroyed; of testimony as to experiments in cutting a similar electric cord; of a copper print test to show the presence of copper on the back of a metal tray which might have acted as a ground; and of experiments on "control skin" of the victim.

Questions in cross-examination of an expert, called by the defendant, respecting a certain conversation he had had with the defendant's counsel as to articles shown him by counsel were not improper at a certain criminal trial. There was no error at a criminal trial in the admission of evidence of the

Commonwealth in rebuttal of evidence produced by the defendant.

At the trial of an indictment charging murder, physicians who attended at an autopsy performed upon the victim might properly testify as experts as to what they found on examination of the body and as to their conclusions as to the cause of death, although the autopsy was not authorized as required by statute.

No error appeared, at the trial of an indictment charging a father with murder of his Mongoloid child, in a refusal of the judge to instruct the jury that the "fact, if it be proved to the jury to be a fact, that the deceased son of the defendant was a Mongolian type does not prove or tend to prove a motive on the part of the father for taking his life," where it appeared that the defendant, shortly after the child's death, had stated, "Of course I have a motive" and "I suppose I could have a motive," and the judge correctly and adequately instructed the jury on the subject of motive.

A judge presiding at a criminal trial is not required to single out particular evidence on an issue for specific comment in instructions to the jury. A request for an instruction at the trial of a criminal case that, the

"Commonwealth having introduced as part of its case statements of the defendant as to happenings, observations and state of mind, and there being no evidence contradicting them, the Commonwealth is bound by those statements, observations and testimony," properly was refused: the jury were not obliged to accept or reject the defendant's statements in their entirety, but could give credence to only such portions as they deemed trustworthy.

It is not error at a criminal trial to refuse a request for an instruction to the jury, even though it embodies a correct statement of law, if it is not pertinent to any issue at the trial.

There was no error in the denial of motions for a new trial of an indictment for murder where they raised the same questions presented at the trial by a motion for a directed verdict of not guilty.

No abuse of discretion was shown in the denial, after a hearing on affidavits of a motion for a new trial of an indictment for murder based on allegations that, by reason of false and malicious statements made concerning the defendant prior to the trial and of consequent adverse public attitude toward him, an unprejudiced panel could not be provided for the trial.

The mere fact, that a jury hearing an indictment for murder, after a trial lasting more than a month, deliberated only about six hours before bringing in a verdict of guilty, did not require the granting of a new trial.

No abuse of discretion and no error was shown in the denial of a motion for a new trial of an indictment based on averments of bias, prejudice and hostility of certain jurors which the trial judge, after a hearing on affidavits and oral testimony, found were not true.

INDICTMENT, found and returned on January 13, 1944. The case was tried before Pinanski, J., beginning on May 31, and ending on July 6, 1944.

J. B. Ely & W.

J. Donovan, (R.

T. King & G. V. Mottla with them,) for the defendant.

C. R. Alberti, District Attorney, (A.

W. Bettigole & V.

O. Cote, Assistant District Attorneys, with him,) for the Commonwealth.

DOLAN, J. On January 13, 1944, the defendant was indicted for the murder of his infant son, Lawrence S. Noxon, at Pittsfield, on September 22, 1943. The indictment is in two counts. The first count charges that on

September 22, 1943 at Pittsfield, in the county of Berkshire, the defendant "did assault and beat Lawrence S. Noxon with intent to murder him, and by such assault and beating did kill and murder the said Lawrence S. Noxon." The second count charges that the defendant "at the time and place aforesaid did assault and beat Lawrence S. Noxon with intent to murder him by causing a current of electricity to pass through his body until he was dead, and by such assault and beating by causing a current of electricity to pass through his body until he was dead, did kill and murder the said Lawrence S. Noxon." The defendant having moved for a bill of particulars, the Commonwealth filed particulars as follows: "Comes now the Commonwealth in the above-entitled indictment and with reference to Count One thereof sets forth the following particulars: That the said John F. Noxon at the time and place mentioned in said indictment did assault and beat Lawrence S. Noxon with intent to murder him by causing a current of electricity to pass through his body until he was dead, and by such assault and beating by causing a current of electricity to pass through his body until he was dead, did kill and murder the said Lawrence S. Noxon." The defendant's motions to quash the indictment and for further particulars and his motion to dismiss the indictment were denied, subject to his exceptions. The defendant was found guilty of murder in the first degree, a sentence of death was imposed, and the execution of the sentence was stayed as required by G. L. (Ter. Ed.) c. 279, Section 4, as appearing in St. 1935, c. 437, Section 3. The case comes here upon the defendant's appeal accompanied by an assignment of errors, a summary of the record, and a transcript of the evidence, as...