Commonwealth v. Russ

• Citation: 122 N.E. 176,232 Mass. 58
• Parties: COMMONWEALTH v. RUSS.
• Decision Date: 24 January 1919
• Court: United States State Supreme Judicial Court of Massachusetts

232 Mass. 58

122 N.E. 176

COMMONWEALTH

v.RUSS.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 24, 1919.

Appeal and Exceptions from Superior Court, Suffolk County; James H. Sisk, Judge.

Oscar F. Russ was convicted of murder in the second degree, and he excepts, and appeals from orders denying his motions for new trial. Exceptions overruled, and orders affirmed.

Wendell P. Murray and Morris Katzeff, both of Boston, for appellant.

J. C. Pelletier, Dist. Atty., and A. C. Webber, Asst. Dist. Atty., both of Boston, for the Commonwealth.

RUGG, C. J.

The defendant was indicted for the murder on August 23, 1915, of his wife, Emily Russ. The jury returned a verdict of guilty in the second degree. It is strenuously argued in behalf of the defendant that there was no sufficient evidence to support a finding that her death was caused by the defendant. His contention is that there was no adequate proof that the crime of murder was committed at all, and that consistently with every established fact the deceased might have committed suicide, and that even if there were the requisite degree of proof of the crime of murder, there was no ground for a finding beyond a reasonable doubt that the defendant committed that crime. A somewhat detailed examination of the evidence becomes necessary.

There was no direct and positive proof that the defendant committed the crime. The evidence was in this respect altogether circumstantial. The testimony in its salient features respecting physical facts is not much if at all in controversy. There is the utmost divergence of view as to the inferences which rationally may be drawn from them. It was conceded by the commonwealth at the trial that the defendant could not be guilty unless it was shown that be committed the murder before shortly after 7 o'clock in the morning prior to leaving the home for his work.

The defendant and his wife, both young and natives of Russia, were not of the same race. The wife was an Esthonian and the defendant of Lettish and German stock; the two peoples generally not being friendly either in Russia or in the United States. The wife before her marriage was strong, healthy and of attractive appearance, but for some months before her death she lost flesh and was not so well. They had been married less than two years and had lived a part of the time with the family of the defendant's father, but the wife and her mother-in-law not being happy together, the defendant and his wife left to live by themselves. In August, 1915, with their baby girl 11 months old they lived in a tenement of three rooms on the first floor of a six-tenement wooden house in Roxbury. The front room was a parlor or sitting room, back of which was the kitchen, and behind that a bedroom. The wife was last seen alive by any one except the defendant on the evening of Sunday, August 22. On that day the two had been at home until toward night and had drank beer and wine. The deceased spent the evening with friends but returned home about 10 o'clock, the defendant having remained at home. The defendant, a painter by trade, worked the usual hours of labor on Monday, August 23, leaving his home not far from 7 o'clock in the morning. He carried his dinner. To his fellows and others on that day he appeared as usual and not under special stress or excitement. A little before 7 o'clock in the evening he was seen sitting on the steps of the house by a man named Vollm, who occupied an upper tenement. The defendant said that he had been sitting there for about two hours and could not get into his apartment. Together they tried the doors. That of the front room was locked from the inside and the one into the kitchen also was locked, having a Yale lock which fastened the door when it closed. At Vollm's suggestion the defendant entered the bedroom through a window by pushing aside a screen. A few minutes later the defendant went upstairs and asked Vollm to come down as something had happened to his wife. Vollm went through the kitchen into the front room of the defendant's apartment and there found the cold and lifeless body of the wife stretched on the floor between a couch and table. The defendant was sitting on the lounge and took a box of cigarettes and lighted one and soon went out to get an officer. In about 20 minutes he returned. Police officers came, and the medical examiner. The latter made a thorough examination of the body of the deceased and all the surroundings, during a part or all of which the defendant sat smoking cigarettes. The clothing found on the body consisted of shoes and stockings, an undervest, a nightdress and kimono, the latter being partly over the face. A somewhat bloody open razor belonging to the defendant was lying on the nightdress, which bore no stain in the immediate vicinity. There was no trace of any struggle in the tenement. Its furnishings were in order. The kimono was gathered in an irregular mass about the neck. It was ‘pulled tightly under the arms in front as though the force causing this had been directed from behind at a level of about the shoulders and from below up.’ Save in these particulars the scanty clothing upon the body was in perfect arrangement, and there were no traces of violence to her person except about the neck. The body was lying on its back with arms outstretched at a slight angle from the body, with palms upward. There was no blood on the hands, body or clothing of the deceased except about the neck and head and the upper parts of the clothing. Two small ropes or cords tied about the neck were similar to others in the tenement. There was unburned paper and other waste in the kitchen stove. An autopsy was performed by Dr. Watters, the associate medical examiner of Suffolk county, the results of which were described in great detail in evidence. He testified that just below the left breast bone was a Y-shaped scar two inches long on its longest surface line, that the wound went down to the bone and was one-half to an inch deep, and that it had been healed about two or three months. He testified that in his opinion death was due to asphyxiation and hemorrhage of the vessels of the neck, and had occurred from 12 to 18 hours, possibly 12 to 24 hours, before his first examination, which was at a quarter past 8 on the evening of August 23.

The contents of the stomach were examined by a chemist, who gave a minute description of what he discovered. He expressed the opinion that food had been ‘eaten not more than one hour prior to her death.’

There was testimony from other tenants in the house that no sounds of struggle, disturbance or otherwise were heard in the tenement of the defendant on August 23. A collector testified that he knocked at the doors about 11 o'clock in the forenoon and received no response and heard no sound. He left his card under the door, which was subsequently found there by others. There were slight blood spots upon underwear of the defendant in the bedroom. The clothing upon the bed was very much tossed. The baby was upon the bed at night and apparently had been there from the death of her mother until after the tragedy was discovered, when she was taken by Mrs. Vollm. It did not appear that any one had heard any sound from the child during the day. The wife of the keeper of a baker's shop almost directly across the street from the tenement of the defendant testified that during the three weeks the defendant had lived there Mrs. Russ came each morning except Sundays to the shop to make purchases at about 6 o'clock, being the first customer, but that she did not come at all on Monday morning, August 23.

It was not contended that any robbery had been committed it the Russ tenement. It did not appear that the deceased had any enemies, although there was evidence that she had driven from the tenement one man who attempted familiarity.

There was evidence from police officers to the effect that the defendant after his arrest had said that he had never had trouble with his wife, but that later he had said that he had had trouble with her when living with his mother, and that he ‘in fooling’ with her he had had a bread knife and that this was at a time when she had called him a ‘bum’ and took him to task for drinking, and he had then said that if she did not stop he would kill her. He said that she had no scar on her breast.

The defendant testified at length in his own behalf that his wife arose, prepared his breakfast as usual on Monday morning, August 23, not eating until after he left, and that his parting with her was affectionate and that he did not enter the house earlier at night, thinking that his wife had gone out, and he was waiting for the return. The opinion evidence of the medical examiner and chemist was contradicted in important particulars by that of other expert witnesses called by the defendant, whose testimony tended to indicate that the deceased met her death a considerable period after the defendant left home in the morning.

The evidence is voluminous. We have made only a very summary statement of its most pertinent aspects. But all the evidence has been carefully scrutinized and is in mind in the determination reached. These facts and the inferences reasonably to be drawn from them in our opinion warranted the jury in excluding as untenable the theory that the deceased committed suicide. The conclusion would seem to be irresistible that the bloody razor upon the body of the deceased was the instrument with which was made at a single stroke the deep wound in the neck. It well might be thought incredible that the hand which caused such a wound should be unstained with blood. The position of the razor upon the body might be regarded incompatible with the supposition that the deceased could have placed it there. Her hands and arms were free from stain. A razor might be considered an unusual weapon for a woman to use with such accuracy and effect. The tightness with which the ropes or cords were...