Commonwealth v. Rollins

• Decision Date: 06 July 1922
• Citation: 136 N.E. 360,242 Mass. 427
• Parties: COMMONWEALTH v. ROLLINS (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 427

136 N.E. 360

COMMONWEALTH

v.ROLLINS (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

July 6, 1922.

Exceptions from Superior Court, Suffolk County; Patrick M. Keating, Judge.

G. L. Rollins was convicted of murder in the first degree, and he brings separate bills of exceptions complaining of rulings at the trial and of the denial of his motion for a new trial. Exceptions to rulings at the trial overruled, and exceptions to the denial of the motion dismissed.

The murder was committed in the robbery of a store of which deceased was manager. There was no dispute as to the commission of the crime; the principal, if not the sole, question being whether defendant was the guilty party. Several witnesses testified concerning their identification or attempted identification of defendant while in jail, and a police sergeant also testified of the circumstances of such identification, over defendant's objection that the witness was telling something that had nothing to do with the case and was immaterial. Defendant excepted to the overruling of such objection, and also to other rulings on evidence. A motion for a new trial was filed and heard on July 9, 1918, and denied on September 3, 1918. On May 5, 1920, another motion for new trial was filed on the ground of newly discovered evidence. On February 16, 1921, a motion was filed to reopen the motion of May 5, 1920, and the court granted the rehearing, but denied the motion for a new trial. The evidence on the rehearing related to confessions by one Murphy that he and another committed the robbery and homicide. Defendant excepted to the denial of the motion and to the refusal of rulings that on all the evidence he was entitled to a new trial; that the evidence of Murphy, if believed, would necessarily result in defendant's acquittal at another trial; and that the testimony of a witness with reference to her identification of Murphy was unknown to defendant at the time of the trial, and was newly discovered evidence entitling defendant to a new trial.Daniel M. Lyons, Asst. Dist. Atty., and Daniel J. Gallagher, Sp. Asst. Dist. Atty., both of Boston, for the commonwealth.

Thomas L. Walsh and Thomas H. Connelly, both of Boston (Leo M. Harlow, of Boston, of counsel), for defendant.

BRALEY, J.

The defendant having been indicted, tried and convicted of murder in the first degree June 18, 1918, the case is before this court on exceptions to rulings at the trial allowed January 9, 1922, and exceptions allowed December 21, 1921, to the refusal to give certain rulings on a motion for a new trial because of newly discovered evidence, which was denied June 29, 1920. The exceptions relating to the merits may be considered in the order shown by the record.

‘There was testimony that the defendant * * * fired the shot which killed Hall,’ the decedent. ‘The principal, if not the sole question for the jury was whether or not the defendant was the man who fired the shot, * * * there being no question * * * that the person who killed him was at the time committing robbery being armed with a revolver.’ R. L. c. 207, § 1, and section 17, as amended by St. 1911, c. 84; R. L. c. 215, § 1.

It was competent for the commonwealth to introduce evidence to identify the defendant as the assailant, and a witness having testified that on being shown an album ‘he picked out the picture of a man who looked like’ one of the men whom he had seen at the store, the place of the alleged homicide, he was asked in cross-examination, ‘Do you know why the police have not brought that man to you?’ This question having been answered in the negative, he was then asked, ‘Have you been given any reason?’ The question was excluded, subject to the defendant's exception. The judge thereupon suggested that he would allow a question, ‘whether police officers gave him any reason.’ The defendant's counsel, reframing the question, then asked, ‘Was any reason given why that man was not produced by any police officer?’ to which the witness answered, ‘No, sir.’ It is obvious that the defendant was not prejudiced by the ruling, which was within the discretionary powers of the judge. Com. v. Min Sing, 202 Mass. 121, 88 N. E. 918.

[3] The evidence as to what happened at the jail to which the defendant had been committed when attempts were made in his presence to identify him as the person charged in the indictment was admissible. It was not hearsay. The weight and sufficiency of that evidence, as well as similar evidence tending to establish identification, was for the jury. Com. v. Snow, 14 Gray, 385;Com. v. Annis, 15 Gray, 197.

The defendant, after testifying in direct examination as to the time when he first knew that he was suspected, and was being sought for by the police, said on cross-examination that, after receiving information that the officers had been to his house, he went to the office of his counsel. The district attorney then inquiredas to the object of his visit and the necessity of his obtaining legal advice. After disclaiming that what he did had any connection with the crime charged, he was asked:

‘Well, what did you go there for?’ ‘I went in to have him go to the Massachusetts Highway Commission, so that I could get my license.’

It appeared that he had a chauffeur's license, which ‘had been taken away,’ and the further questions as to the date when this was done, and ‘what was the license he had to see counsel about,’ and how long before the homicide it had been revoked were admissible. The defendant, whether guilty or innocent, had the undoubted right to retain counsel, and to consult him about the circumstances which had come to his knowledge, that he was suspected of having committed the murder. But having said that his only purpose was to obtain, if possible, a renewal of his license, the character of the license and the date of its suspension were subjects of inquiry within the discretion of the judge. Com. v. Min Sing, supra; Com. v. Mullen, 97 Mass. 545. We discover no error of law at the trial, and pass to the errors alleged for reversal of the order denying the motion. R. L. c. 173, § 106.

[6] The indictment was tried at a sitting beginning June 3, 1918, but the motion was not filed until February 16, 1921. By R. L. c. 219, § 33 (G. L. c. 278, § 29):

‘The superior court may, at the sitting in which an indictment is tried, or within one year thereafter, upon motion in writing of the defendant, grant a new trial for any cause for which by law a new trial may be granted or if it appears to the court that justice has not been done, and upon such terms and conditions as the court shall order.’

If the statute controls, the trial court was without jurisdiction to entertain the motion, and no question of law is before us. Fourth National Bank v. Mead, 214 Mass. 549, 102 N. E. 69. The common law of England conferred no power on the court to grant new trials in capital cases. Reg. v. Frost, 2 Moody, 140; U. S. v. Gilbert, 2 Sumn. 19, Fed. Cas. No. 15,204;U. S. v. Keen, 1 McLean, 429, 432, Fed. Cas. No. 15,510; Rex v. Mawbey, 6 Term Reports, 619; Tinkler's Case, 13 East, 416, note (b); Reg. v. Bertrand, L. R. 1 P. C. 520;Reg. v. Murphy, L. R. 2 P. C. 535. The defendant upon conviction must resort to the pardoning power for relief, which, if not granted, execution followed. If the court had ruled erroneouslya pardon ordinarily was granted upon recommendation of the judges. The remedy where there were errors of fact was the writ of coram nobis. The entire subject is exhaustively and learnedly examined and discussed in Appo v. People, 20 N. Y. 531, 549, and in Sanders v. State, 85 Ind. 318, 324-329,44 Am. Rep. 29. See Opinion of the Justices, 207 Mass. 606, 608, 609, 94 N. E. 846. It was decided in Com. v. Green, 17 Mass. 515, where the defendant, having been convicted of murder, moved, after verdict, but before sentence, for a new trial on the ground of newly discovered evidence, that this court ‘has power to grant a new trial on the motion of one convicted of a capital offense’ if sufficient cause is shown therefor. It was said:

‘It has been argued * * * that by law a new trial cannot be granted of a capital felony; and it appears by the English text-books, and by several decisions cited in support of the position, that in cases of felony a new trial is not usually allowed by the courts of that country. But whatever reasons may exist in that country for this practice, we are unable to discern any sufficient grounds for adopting it here.’

See also, as supporting the same view, State v. McCord, 8 Kan. 232, 12 Am. Rep. 469. And in Commonwealth v. Lockwood, 109 Mass. 323, 338,12 Am. Rep. 699, Mr. Justice Gray said:

‘In Commonwealth v. Green, 17 Mass. 515, in 1822, in which the power of the court to grant a new trial in a capital case on motion of the defendant after conviction by the jury was deliberately settled for the first time in this commonwealth upon full argument and advisement, Chief Justice Parker, in delivering judgment, clearly affirmed the authority of the court, upon being satisfied of an error in the rulings at the trial, to certify the fact to the executive and recommend a pardon, instead of granting a new trial, and declared that the latter course was the most proper, not from any doubt of the power of the executive to grant a pardon at that stage of the case, but because it was more consistent with public justice that the defendant should be tried again according to law than that he should be discharged for some irregularity perhaps not affecting the merits of the case, and more consistent with the rights of the defendant to have the judges correct an error committed by themselves or by others concerned in the trial, ‘instead of being obliged to rely upon the disposition of the court to recommend a pardon, or of the executive power to grant it.’ 17 Mass. 535, 536.'

‘The right of trial by jury includes the power of the presiding judge to set aside the...