Commonwealth v. Retkovitz

• Decision Date: 24 November 1915
• Citation: 110 N.E. 293,222 Mass. 245
• Parties: COMMONWEALTH v. RETKOVITZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 245

110 N.E. 293

COMMONWEALTH

v.RETKOVITZ.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 24, 1915.

Exceptions from Superior Court, Bristol County; Hugo A. Dubuque, Judge.

Anton Retkovitz was convicted of murder in the first degree, and he brings exceptions. Sustained.Jos. T. Kenney, Dist. Atty., of New Bedford, for the Commonwealth.

Frank M. Silvia, of Fall River, for defendant.

RUGG, C. J.

[1] I. The photographs of the neck and face of the dead woman, Domka Peremebida, for the murder of whom the defendant was on trial, rightly were admitted in evidence. It is not contended that they were not genuine and correct. They well might aid the jury in understanding the nature of the mortal wound. Com. v. Tucker, 189 Mass. 457, 476, 477, 76 N. E. 127,7 L. R. A. (N. S.) 1056. It does not appear that their admission tended to inflame the jury against the defendant or to prejudice him in any way. Natural abhorrence of a crime such as that charged in the indictment was an inevitable incident of the trial. Competent and material evidence is not to be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible. Com. v. Johnson, 199 Mass. 55, 85 N. E. 188;Hubbard v. Allyn, 200 Mass. 171, 86 N. E. 356. There is no suggestion that adequate instructions were not given.

II. Certain conversations between the woman alleged to have been murdered and police officers in the presence of the defendant tending to show his hostility toward her, and his threats of violence to her about forty-four days before the homicide, properly were received in evidence. It always is relevant to show relations of enmity between an alleged murderer and his victim within a reasonable time before the homicide. Evidence covering a far longer period than in the case at bar has been held to be admissible. Com. v. Quinn, 150 Mass. 401, 23 N. E. 54;Com. v. Holmes, 157 Mass. 233, 32 N. E. 6,34 Am. St. Rep. 270.

[4] III. There was evidence that the defendant had threatened to shoot the woman. Thereafter, he was arrested and a revolver, found at that time under the stairs of the first floor of the house, on an upper floor of which he had a room, was admitted in evidence. In this there was no error. Whether it was under the control of the defendant and whether, if so, it indicated ill will toward the dead woman and preparation to do injury to her, were material questions for the consideration of the jury.

[5] IV. Two witnesses called by the commonwealth testified that they saw the defendant near the house of Domka Peremebida a short time before her death. The counsel for the defendant stated, after cross-examination, in substance that he intended to show, if he could, that these witnesses had concealed the facts, or that they were unduly influenced to testify as they did, or that their testimony was a recent contrivance. Thereupon, the commonwealth was permitted, without objection, to call a witness, Violette, to show that these two witnesses had made statements soon after the homicide similar to those given by them in testimony. Upon this posture of the case such testimony was competent.

[6][7] The mere fact that a witness has made statements on other occasionsat variance with testimony given in court does not warrant the introducing of confirmatory evidence to the effect that he has given an account of the transaction at still other times in harmony with his sworn testimony. A party may, for the purpose of discrediting an opponent's witness, show that he has given two inconsistent narrations of the same affair, one of which was necessarily untrue. As is pointed out with clearness by Bigelow, J., in Commonwealth v. Jenkins, 10 Gray, 485, 488, when this is the state of the evidence it by no means relieves the witness of the distrust thus cast upon him to prove that the story last told was similar to an earlier version given by the witness. The two inconsistent statements still remain. Hence, under these circumstances, such corroborating evidence is inadmissible. This is the general rule. But there is an exception where the contention is made that the testimony of a witness is given under a bias or undue influence, arising from some late occurrence subsequent to the main event, is a recent contrivance, or that the facts described in testimony previously have been concealed under conditions which warrant the belief that, if they were true, the witness would have been likely to have revealed them. In such a situation, evidence that the witness at earlier times before the intervention of these pernicious impulses had made statements like those given in court has a legitimate tendency to impugn the existence of these factors as operating causes to produce the testimony and thus to fortify his testimony, and therefore should be admitted. The exception to the general rule is a narrow one and is not to be extended; but, when the contentions of the parties give rise to its application, it is well established. Griffin v. Boston, 188 Mass. 475, 74 N. E. 687;Brown v. Brown, 208 Mass. 290, 94 N. E. 465. See, for a full discussion of all the principles, Com. v. Tucker, 189 Mass. 457, 479-485, 76 N. E. 127,7 L. R. A. (N. S.) 1056.

Another witness named Medley was called for the same purpose, when the defendant objected to the testimony on the ground that the commonwealth could not introduce such evidence to support and strengthen the statements of its own witnesses and that such evidence was hearsay. Then this colloquy took place:

The Court: ‘That is the usual rule, that it isn't admissible. But where it is claimed that a party has concealed the facts, or has been unduly influenced to testify as to what he did, I suppose it is admissible.’

Mr. Kenney (District Attorney): ‘Or tells a different story afterwards.’

The Court: ‘Well, merely telling a different story wouldn't make any difference. It must be a matter of concealment or a matter of bias or influence. It was admitted in the Tucker case on the ground of influence, it was claimed. In other cases it has been admitted on the ground that it is claimed that the witnesses have concealed the facts, or were unduly influenced.’

It is manifest that the court understood exactly and stated with precision the governing rule of law. Thereupon it was said by defendant's attorney:

‘All I am going to do in this case is contradict Mr. Belford's own testimony; that is what I am going to do. They have denied certain questions and statements put to them, and I...