Commonwealth v. Pomeroy

• Decision Date: 13 February 1875
• Citation: 117 Mass. 143
• Parties: Commonwealth v. Jesse H. Pomeroy
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 143

Commonwealth v. Jesse H. Pomeroy

Supreme Court of Massachusetts

February 13, 1875

[Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Indictment for murder. Trial before Gray C. J., and Morton, J., who allowed a bill of exceptions, in substance as follows:

The defendant, a boy of the age of fourteen years and five months at the time of the offence, was tried on an indictment for the murder of Horace R. Millen, a child four years old, committed at Boston on April 22, 1874. The prisoner was arrested on the evening of the same day. On the next day he was taken by the officers to view the body of his victim, and admitted having killed the deceased; and on the afternoon of that day one of the trustees of the State Reform School talked with him privately at the station-house. On April 24 he was taken before the coroner's jury, where he testified, and denied that he killed the child; and afterwards, on the same day, he had an interview with two lawyers, one of whom was of counsel for him at his trial. He was committed to the jail on May 1, where he remained until the time of his trial. The defence set up was the insanity of the prisoner.

The defendant called George B. Munroe, an officer of the jail, and also offered to call other officers at the jail, for the purpose of showing the acts, conduct and habits of the prisoner on and after May 1, as bearing upon the question of his sanity at the time of the homicide. The court, in its discretion, excluded the testimony, as relating to a time too long after the homicide and arrest to be material. The defendant seasonably alleged exceptions to this ruling.

A medical expert, called as a witness for the Commonwealth, who had examined the prisoner in jail at the request of the attorney general, and had heard the testimony at the trial, testified that in his opinion he was of sound mind at the time of the homicide. Upon cross-examination, he testified that he had given to the attorney general a statement in writing of the opinion which he formed upon his examination of the defendant. The defendant's counsel proposed to read that opinion and to put it in evidence, the same having been previously handed to him by the attorney general, upon request. The attorney general objected, and contended that it was under his own exclusive control, but offered to allow the defendant's counsel to use it for the purpose of framing questions in cross-examination, but not to read it to the jury or the witness.

The court ruled that, being a paper addressed to the attorney general by an expert employed by him to assist in preparing the case for the Commonwealth, the court should not compel its production or allow it to be used, except so far as the attorney general permitted. The defendant's counsel took no exception to the ruling at the time, and used the opinion in accordance with the permission of the attorney general, in conducting the cross-examination of the witness. At the close of the examination of this witness, neither party desiring to offer any further evidence, the court adjourned to the next morning, when the counsel for the defendant stated that he wished to reserve an exception to this ruling, and his exception was reserved, subject to the question whether the right so to except had not been waived.

The jury returned a verdict of guilty of murder in the first degree, and the defendant alleged exceptions, which were allowed "if and so far as they contain any matter as to which the defendant has the right of exception."

Exceptions overruled.

C. Robinson, Jr., for the defendant. 1. Insanity is shown by the acts, declarations and conduct of the party; they are indications of his state of mind, and evidence thereof, both before and after the act done, is admissible. 2 Greenl. Ev. § 371. Dickinson v. Barber, 9 Mass. 225. Beavan v. M'Donnell, 10 Exch. 184. State v. Hays, 22 La. An. 39. Grant v. Thompson, 4 Conn. 203. Bryant v. Jackson, 6 Humph. 199. McLean v. State, 16 Ala. 672. McAllister v. State, 17 Ala. 434. People v. March, 6 Cal. 543. Shailer v. Bumstead, 99 Mass. 112, 120. It is therefore submitted that if evidence of acts, both before and after the time of the alleged offence, be admissible, the admission of such evidence cannot be a matter within the absolute discretion of the court; but if limited to a reasonable time, its admission is a matter of right. Shailer v. Bumstead, 99 Mass. 130. If this is not so, we have not a government of laws but of men. And the life of a citizen might not depend upon the laws of the land, but the discretion of the particular judges before whom he should be tried. The limitation adopted in this case was too restrictive. In Shailer v. Bumstead, supra, the testatrix was an aged person afflicted with paralysis, and in fifteen months might have become far advanced in dotage and incapacity; but in the case at bar the prisoner was a lad, and the same objection did not exist. In that case, if the testatrix had been a person of middle age and not afflicted with an active, physical disease, it is probable that the decision would have been otherwise. But even in that case, had the evidence excluded been of acts occurring only eight days after the making of the will, the opinion of the court leads to the inference that the ruling could not have been sustained. In the following cases a much larger latitude was allowed and approved. Dickinson v. Barber, 9 Mass. 225. Beavan v. M'Donnell, 10 Exch. 184. In State v. Hays, 22 La. An. 39, no limit was regarded between the time of killing and the trial. In McAllister v. State, 17 Ala. 434, it was decided that the exclusion of evidence of the prisoner's mental condition at the time of his trial was erroneous.

2. The statement of the medical witness given to the attorney general was not a privileged communication. It was not an account of facts, or of circumstances connected with the homicide. It was not one of the means of information for the discovery or detection of an offender against the laws. It was, therefore, not within the rule. 1 Phil. Ev. c. 6. The statement excluded was only a previously expressed opinion of the witness. The rule of exclusion is to be applied no further than the attainment of public safety requires, and all opportunities should be given to discuss the truth of evidence given against a prisoner not prejudicial to the public interests. Rex v. Hardy, 24 Howell's St. Tr. 199, 808. 1 Greenl. Ev. § 250. The rule does not apply where the disclosure does not violate official confidence. Stark. Ev. (4th Lond. ed.) 193. In this case the government disclosed the secret, and by the passing of the paper to the defendant's counsel it was taken out of the rule, even if otherwise it had been within the principle of exclusion. It has been questioned by good authority whether the rule of exclusion is applicable to cases of ordinary prosecution. 1 Taylor Ev. § 862. In Rex v Hardy, supra, Eyre, C. J., said that if it could be made to appear that it was necessary to the investigation of the truth that the name of the person who was the channel by means of which the detection had been made should be disclosed, he should be unwilling to stop the inquiry. The attorney general did not place his objection on the ground that the use of the paper would be injurious to the public service; and if not so injurious, then the paper was not...