Commonwealth v. Simpson

• Decision Date: 28 March 1938
• Parties: COMMONWEALTH v. EDWARD P. SIMPSON. SAME v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 45

13 N.E.2d 939

COMMONWEALTH v. EDWARD P. SIMPSON. SAME v. SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

March 28, 1938

March 7, 1938.

Present: RUGG, C.

J., FIELD, LUMMUS DOLAN, & COX, JJ.

Evidence Relevancy, Competency, Of consciousness of guilt, Dying declaration, Discretionary control of evidence, Preliminary examination as to admissibility, Of motive, Admissions. Practice, Criminal, Exceptions: whether error harmful general exception; Discretionary control of evidence Preliminary examination as to admissibility of evidence; Appeal with assignments of error. Witness, Refreshment of recollection, Credibility.

At a trial for murder, on a witness's testifying that the defendant "had something in his hand" and his being asked what it was, the answer, "I couldn't tell you what he had, but it was shaped like a revolver," was not unresponsive and there was no prejudice to the defendant in allowing it to stand.

Testimony at the trial of an indictment that the witness had told a police officer that the defendant was "holding up" another officer was not prejudicial to the defendant in view of other evidence, admitted without objection by the defendant and also elicited by him in cross-examination, that such "holdup" occurred.

It was in the discretion of the judge at a trial for murder to allow the district attorney to put leading questions to witnesses for the

Commonwealth.

A question to a witness, whether he could tell that one of two persons was talking to the other, was competent.

A trial judge was not required to strike out an answer of a witness which, though not categorical, was in the nature of a repetition of what he had previously testified without objection.

Testimony of a witness as to the ownership of certain property, not shown by cross-examination or otherwise not to have been based on his own knowledge, was not objectionable as being his "opinion" or "conclusion of fact."

At a trial for murder by shooting, testimony by a witness that just after he heard shots near his house a man (identified as the defendant by other evidence) appeared in his driveway and said, in answer to an inquiry as to what the trouble was "over there," "Shut your . . . mouth," was admissible as evidence of the defendant's consciousness of guilt.

In an examination preliminary to the admission of testimony as to a dying declaration, the witness's use of a written memorandum to refresh his memory concerning the questions to and answers by the dying person was proper.

The defendant at the trial of an indictment was not harmed by the admission of hearsay evidence of a fact if he admitted that fact.

At a trial for murder of police officers who were shot by the defendant while one was following an automobile driven by the defendant and the other was riding in it by the defendant's compulsion, evidence that the automobile had been stolen and bore false registration plates; that the defendant was "wanted" for several serious crimes; that he was a fugitive from justice; and that he had escaped from jail, was admissible to prove a motive for the murders.

At a criminal trial, there was no error in permitting a witness to testify that he knew the defendant by another name specified as his alias in the indictment.

There was no error in admitting in evidence at a criminal trial, solely on the issue of the defendant's credibility as a witness, records of convictions of a man of another name where the defendant admitted that he was the person described in the records and that they were true. Evidence of motive is competent but not an essential part of the

Commonwealth's case at a trial for murder.

The admission in evidence at a murder trial of articles related to the crime, alleged to have been found several hours after the crime in an automobile used by the defendant at the time it was committed, was not error; whether the articles were in the automobile while it was in the defendant's possession was for the jury on the evidence.

At a trial for murder of a police officer, it was not an abuse of discretion nor prejudicial to the defendant to admit in evidence clothing and personal effects of the deceased.

If a defendant charged with murder of a police officer remarked during the trial that it was "too bad" he "didn't knock . . . off, too," another police officer who had participated in the events leading up to the murder and who was testifying for the Commonwealth, that remark was evidence of an admission by the defendant.

No question of law was raised by a general exception to the whole charge at a murder trial nor by an assignment of error based on that exception.

Upon appeal following a conviction of murder, an assignment of error is of no effect unless based on an exception.

TWO INDICTMENTS, found and returned in the Superior Court on August 30, 1937, and September 14, 1937, respectively.

The indictments were tried together before Swift, J. The defendant was found guilty on each indictment and filed appeals with assignments of error.

J. M. Boyle, (H.

Aronofsky with him,) for the defendant.

W. J. McCluskey, Assistant District Attorney, for the Commonwealth.

COX, J. The defendant was found guilty in the first degree of the murders of Henry G. Bell and Lawrence E. Murphy, both police officers of the city of Newton. Each indictment alleged that the defendant was otherwise called James R. Swartz. Sentence of death was imposed and stay of execution was ordered. St 1935, c. 437, Section 3. The defendant testified in his own behalf and admitted that he shot both officers, contending that he did so in self-defence.

There was evidence that on the evening of August 21, 1937, the defendant, while operating an automobile which had been stolen, invited a girl named Frada to ride. At her request, he permitted her to drive and while she was doing so they were stopped by two police officers, one of whom was Bell, the deceased. After some conversation, the other officer, whose name was Whelan, went away, leaving Bell standing beside the automobile, which was parked at the curb. At the direction of the defendant, the Frada girl alighted but remained near-by. Officer Whelan returned within a short time with a civilian, who looked at the defendant as he was sitting in the automobile. After Whelan and the civilian had departed, the defendant got out of the automobile, came around its rear with a gun in his hand to where Bell was standing and said to him, "stick them up." Bell put up both hands, and the defendant took the officer's revolver. Bell then stepped into the automobile with his hands up, followed by the defendant. At about that time, the Officer Murphy came riding up on his motorcycle and stopped on the left of the automobile. He inquired as to what was going on but received no reply. The Frada girl, who was standing on the sidewalk beside the automobile, went around its rear to where Murphy was standing, said something to him, and returned to the sidewalk. The automobile started, with Murphy following on the motorcycle. After travelling some distance, the automobile stopped on Watertown Street. Murphy, who had been following, left his motorcycle and, as he was approaching from the rear, was shot by the defendant, who was inside the automobile. Murphy slumped to the ground. The defendant shot Bell and tried to push his body from the automobile but was unable to do so. He alighted and as he ran down the street Murphy, in a recumbent position, fired several shots. The defendant was seen to hesitate for a while and then continue on. A bullet which was fired from Murphy's revolver was removed later from the defendant's body. Bell's body was found lying over the wheel of the automobile with his revolver, holster and belt lying on the front seat. No bullets had been fired from his revolver. The defendant testified that as he was sitting in the automobile he was shot from behind by Murphy without any warning; that he then shot Murphy with a revolver which he had had in the automobile all that day and then shot Bell while engaged in a struggle with him. Further recital of the evidence is unnecessary. It relates in part to the defendant's movements after the shooting and to alleged admissions by him. From it the jury could have found a consciousness of guilt on his part and a course of conduct which was inconsistent with his claim of self-defence. Some of this evidence, however, is dealt with in the consideration of the assignments of errors, which follows.

1. The Frada girl testified that, while Bell was standing beside the automobile, the defendant opened the compartment in the front, took out a case and put it between his legs; that it was shaped like a gun; that she grabbed his wrist and said, "Drop that gun"; that as she was standing by the rear of the automobile, "all of a sudden Simpson got out of the car and stuck the officer [Bell] up." She was asked if she saw anything in the defendant's hand and replied, "Well, when I left the car he had something in his hand." She was then asked, "What did he have?" and her reply was, "Well, I couldn't tell you what he had, but it was shaped like a revolver." Thereupon the defendant objected without stating any reason and excepted to the ruling that "It may stand." ^[*] No request was made to strike out the answer. There was evidence from other witnesses that the defendant had a gun in his hand when he "held up" the officer. The evidence objected to was competent for its apparent purpose. It was material to the subject then being inquired about and in a broad sense the answer was responsive. It cannot be said that the ruling of the trial judge was wrong. Commonwealth v. Mercier, 257 Mass. 353 , 370, 371. Nelson v. Hamlin, 258 Mass. 331, 341.

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