Commonwealth v. Osman

• Decision Date: 28 November 1933
• Citation: 188 N.E. 226,284 Mass. 421
• Parties: COMMONWEALTH v. OSMAN,
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 421

188 N.E. 226

COMMONWEALTH

v.OSMAN,

Supreme Judicial Court of Massachusetts, Norfolk.

Nov. 28, 1933.

Appeal from Superior Court, Norfolk County; Williams, Judge.

Ahmed Osman was convicted of murder in the first degree, and he appeals with assignment of errors.

Judgment on the verdict.E. L. Ryerson and W. S. Patterson, both of Boston, for appellant.

E. R. Dewing, Asst. Dist. Atty., of Boston, for the Commonwealth.

LUMMUS, Justice.

The defendant was convicted in the first degree of the murder of Nellie Keras, a girl nine years old, who lived with her parents on the second floor of a house in which the defendant lived alone on the third floor. The body of the girl was found, bound with cord, enclosed in a burlap bag, and hidden in a woodpile in a compartment used by the defendant in the basement. The body gave evidence that the girl had been raped as well as strangled to death. The case comes here 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, §§ 33 A-33) G. Commonwealth v. McDonald, 264 Mass. 324, 162 N. E. 401.

The first error assigned is the admission of photographs of the body of the murdered girl, as it was when removed from the burlap bag. The defendant urges that the condition shown by the photographs could have been shown and in fact was shown by oral testimony. But the photographs described the condition of the body more vividly and accurately than could have been done by words. That condition was material, at least upon the question whether the crime was murder in the first degree because ‘committed * * * with extreme atrocity or cruelty.’ G. L. (Ter. Ed.) c. 265, § 1; Commonwealth v. Desmarteau, 16 Gray, 1, 10, 11.Commonwealth v. Gilbert, 165 Mass. 45, 58, 59, 42 N. E. 336;Commonwealth v. Taylor, 263 Mass. 356, 360, 361, 161 N. E. 245;Commonwealth v. Knowlton, 265 Mass. 382, 386, 388, 389, 163 N. E. 251. The defendant argues that the sight of the photographs may have induced in the jury not only loathing of the crime but also unreasoning hatred of the accused. The judge warned the jury against that, and was not bound to let a merely possible danger of prejudice outweigh the plain evidential value of the photographs. Commonwealth v. Retkovitz, 222 Mass. 245, 248, 249, 110 N. E. 293;Commonwealth v. Knowlton, 265 Mass. 382, 386, 163 N. E. 251.

The second assignment challenges the admission of the testimony of a police officer to accusations against the defendant by Alli Osman, who was indicted and tried with the defendant but acquitted, made while both men were under arrest. Each accused the other, and Alli went into some detail in accusing the defendant. The defendant urges that he unequivocally denied the commission of the crime, and was not required to reply to each detail of the accusation which followed Commonwealth v. Spiropoulos, 208 Mass. 71, 7494 N. E. 451;Commonwealth v. Hamel, 264 Mass. 564, 569, 163 N. E. 168;Commonwealth v. Hebert, 264 Mass. 571, 578, 163 N. E. 189;Commonwealth v. Graham, 279 Mass. 466, 468, 181 N. E. 506. In fact, the defendant not only denied the commission of the crime, but declared that Alli killed the girl; and this, the jury might find, evidenced some knowledge of the crime. For the same reason, the accusations of Alli against the defendant constituted evidence against Alli himself. Each part of the conversation was therefore admissible against one defendant or the other, and neither defendant asked the judge to rule upon the admissibility of different parts. The judge, however, instructed the jury of his own motion that accusations made by one defendant are not evidence against the other. Commonwealth v. Snyder, 282 Mass. 401, 416, 185 N. E. 376. Moreover, since Alli testified at the trial, and repeated in much greater detail the accusations against the defendant that he had made in his conversation with the defendant and the police officer, the admission of that conversation could hardly have harmed the defendant. The evidence admitted was of a mere admission, not of a confession, and the rule excluding confessions induced by threats or promises has no application. Commonwealth v. Haywood, 247 Mass. 16, 141 N. E. 571;Commonwealth v. Jokinen, 257 Mass. 429, 154 N. E. 189;Commonwealth v. Reibstein, 257 Mass. 436, 154 N. E. 271;Commonwealth v. Gleason, 262 Mass. 185, 190, 159 N. E. 518. It is proper to add that there was no evidence of any threat or promise. No error appears.

The third assignment relates to the exclusion of evidence of the conviction of one Suleiman Osman, otherwise called Dan Alli, a brother of Alli Osman, in April, 1929, of ‘assault on a young girl.’ The Commonwealth had introduced evidence that a pair of trousers found in the defendant's tenement and word by him on the day of the crime showed spots of human blood and vaginal epithelial cells. In explanation of the stains, the defendant contended that the...