Commonwealth v. Sheppard

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtDOLAN
Citation313 Mass. 590,48 N.E.2d 630
Decision Date21 June 1943


Joseph E. Sheppard and Donald Millard were convicted of murder in the first degree, and they appeal.

Affirmed.Appeal from Superior Court, Plymouth County; Brown, Judge.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.

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

E. A. Ryan and J. F. Ryan, both of Worcester, and J. M. Boyle and S. Rosenberg, both of Boston, for defendants.

DOLAN, Justice.

On February 5, 1942, the defendants were indicted for the murder of George Landry, at Bridgewater, on January 1, 1942. They were found guilty in the first degree and filed appeals with assignments of error. See G.L.(Ter.Ed.) c. 278, §§ 33A–33G. Sheppard had pleaded not guilty, and a plea of not guilty had been entered by order of the judge for Millard. These pleas were subsequently withdrawn and a plea was entered for each defendant of not guilty by reason of not being criminally responsible at the time of the commission of the crime charged.

There was evidence that at the time of the alleged murder of Landry he was a guard at the male defective delinquent department of the Bridgewater state farm, to which the defendants had been committed as defective delinquents and were there confined; that a few weeks prior to January 1 the defendants planned to escape from the State farm on that day; that in pursuance of that plan, on that day at about 10 A. M., they accompanied one Weston, a prison guard, at his request, into the carpenter shop; and that they there assaulted him, beat him to death, and concealed his body in a toilet. There was also evidence that they broke into a cabinet containing carpenter's tools, and removed therefrom some hammers and chisels and an iron bar which they used in an unsuccessful attempt to pry open the iron grating on a window leading to the outside of the institution and to freedom. Shortly afterwards they were discovered by officer Murphy, a guard, on the fourth floor of the building. They told him they were ‘house-breaking’ and attacked him. In an attempt to get away from the defendants Murphy reached the landing on the third floor of the building, where the defendants again attacked him. His dead body was found underneath a sink by officers of the institution. The defendants returned to the fourth floor where they encountered officer Landry. They fell upon Landry and beat him to death, inflicting a great many wounds on his head and chest. The defendants barricaded themselves at the end of a corridor on the fourth floor with a bed, chairs, table and mattress. State police arrived reinforcing the guards at the institution. They went to the place of the barricade. Smoke was coming therefrom; the corridor was full of tear gas and smoke and water. Sheppard had a hose in his left hand, and a hammer in his right hand. He was standing in front of Millard. They jumped into cells. They were told to come out. After a ‘riot gun’ had been fired a second time, they came out of the cells on their hands and knees. Sheppard ‘made a swing’ at sergeant Fratus. State police officer Moran ‘swung the riot gun and hit * * * [Sheppard] over the head and knocked him on his face.’ Moran also struck Millard over the head with the gun which ‘shattered’ and Millard dropped on his face. Sheppard had a chisel in his belt, and Millard had a hammer in his pocket. There ‘were a lot of weapons around the floor that were found later.’ During the course of these affrays Millard's hand was fractured and Sheppard received a bullet wound in his chest. They were taken to the prison hospital. Psychiatrists, who had examined both defendants, as well as prison physicians were called as witnesses by the defendants and the prosecution. Their testimony was conflicting, but the jury could have found that the defendants were high grade morons who had displayed from early childhood anti-social traits and criminal delinquencies, in some instances, in the case of Sheppard at least, of a maliciously dangerous character which had required their removal from State institutions for the feeble minded and confinement in the department of defective delinquents at the Bridgewater institution. The jury could also have found that neither of the defendants suffered from legal insanity, and that, though defective mentally, they had sufficient mental capacity to formulate and carry through a plan, and to appreciate the nature and probable consequences of their acts on January 1, 1942, as well as an ability to distinguish and appreciate the difference between right and wrong and to be capable of deliberately premeditated action. Commonwealth v. Rogers, 7 Metc. 500, 501, 502,41 Am.Dec. 458;Commonwealth v. Stewart, 255 Mass. 9, 13, 14, 151 N.E. 74, 44 A.L.R. 579;Commonwealth v. Trippi, 268 Mass. 227, 230, 231, 167 N.E. 354;Commonwealth v. Zelenski, 287 Mass. 125, 127, 128, 191 N.E. 355;Commonwealth v. Clark, 292 Mass. 409, 414, 198 N.E. 641. The jury could also have found that Landry had been killed with ‘extreme atrocity or cruelty.’ See Commonwealth v. Bartolini, 299 Mass. 503, 516, 13 N.E.2d 382.

The first assignment of error of both defendants is to the denial by the judge of a motion by each of them for a change of venue on the ground of alleged local prejudice, inflamed public opinion ‘and bias which is rampant in said county, the immediate community where the three victims resided, namely the towns of Bridgewater, Whitman, and Taunton.’ No evidence was adduced in support of these motions, which were argued by counsel. It is settled that such motions ought not to be granted upon mere suggestion, but that the jurisdiction to order a change of venue, G.L.(Ter.Ed.) c. 277, § 51, should be exercised only ‘after a solid foundation of fact has been first established.’ Crocker v. Justices of the Superior Court, 208 Mass. 162, 180, 94 N.E. 369, 377,21 Ann.Cas. 1061;Commonwealth v. Leventhal, 236 Mass. 516, 524, 128 N.E. 864;Hinckley v. Perrin, 253 Mass. 527, 149 N.E. 320; Commonwealth v. Millen, 289 Mass. 441, 194 N.E. 463. There is nothing in the record to show an abuse of discretion in proceeding with the trial in the county where the alleged crime was committed.

The defendants had also been indicted for the murder of Weston and Murphy, by separate indictments, but the prosecution elected to proceed to try the defendants only upon the indictment for the murder of Landry. The second assignment of error of each of the defendants is to the action of the judge in denying his motion that the three indictments be tried together. The determination of these motions rested in the sound discretion of the judge, Commonwealth v. Rosenthal, 211 Mass. 50, 54, 97 N.E. 609, 47 L.R.A.,N.S., 955, Ann.Cas.1913A, 1003, and as was said in Commonwealth v. DiStasio, 294 Mass. 273, 279, 1 N.E.2d 189, 193, where the error assigned was, as here, the denial of a motion to have several indictments tried together, ‘The asserted right to be tried on all the indictments at once finds no support in Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465, 29 A.L.R. 281 * * *. The pendency of other indictments did not affect the responsibility of the defendant upon the one upon which he was put to trial.’ No abuse of discretion by the judge in denying the motions in question is made to appear.

The third and fourth assignments of error of the defendants are to the admission de bone of evidence presented by the Commonwealth relative to the killings of the guards Weston and Murphy by the defendants. The Commonwealth in its opening had promised to show that those killings were done in furtherance and as a part of a plan made by the defendants to escape from the institution, and that they were an integral part of the chain of circumstances and events which shortly afterwards culminated in the killing of Landry. The evidence was admitted de bene over the objections and subject to the exceptions of each of the defendants, who, after its admission, moved that it be struck out, on the ground that the Commonwealth had failed to show any plan with which the killings of Weston and Murphy as well as the killing of Landry had to do. The judge ruled that the motions should not be made until the conclusion of the Commonwealth's evidence. No exception was taken to this ruling, nor did either of the defendants thereafter renew his motion to strike out the evidence in question. The judge was not obliged of his own motion to strike out the evidence admitted de bene, and no motion having been made to that end by the defendants at the proper time, no error is shown. Commonwealth v. Johnson, 199 Mass. 55, 59, 85 N.E. 188;Doon v. Felton, 203 Mass. 267, 272, 89 N.E. 539;Haskell v. Cunningham, 221 Mass. 49, 53, 108 N.E. 915;Alden Bros. Co. v. Dunn, 264 Mass. 355, 362, 162 N.E. 773. In this connection, however, we deem it appropriate to say that we are of opinion that the evidence tended to show that these precedent killings (of Weston and Murphy) did render the commission of the crime charged more easy, more effective ‘to produce the ultimate result which formed the general motive and inducement’ of the defendants and that they were done with that intention and purpose and so had ‘such a connection with the crime charged as to be admissible, though they [were] also of themselves criminal.’ Commonwealth v. Robinson, 146 Mass. 571, 578, 579, 16 N.E. 452, 455. See also Commonwealth v. Lubinsky, 182 Mass. 142, 143, 64 N.E. 966;Commonwealth v. Snell, 189 Mass. 12, 21, 22, 23, 75 N.E. 75, 3 L.R.A.,N.S., 1019; Commonwealth v. Murphy, 282 Mass. 593, 598, 599, 185 N.E. 486;Commonwealth v. Green, 302 Mass. 547, 552, 20 N.E.2d 417. For the reason that a defendant is not to be convicted of one crime by proof that he was guilty of another, ‘it is essential to the rights of the accused that, when...

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