Commonwealth v. Smith

• Decision Date: 04 January 1876
• Citation: 119 Mass. 305
• Parties: Commonwealth v. Ellen L. Smith
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

119 Mass. 305

Commonwealth v. Ellen L. Smith

Supreme Court of Massachusetts

January 4, 1876

Argued October 26, 1875 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Bristol. Indictment for burning the dwelling house of Giles F. Allen at Dartmouth, on June 28, 1874. At the trial in the Superior Court, before Pitman, J., there was evidence tending to show the following facts:

On the night of June 28, 1874, said Allen and his wife went to bed at about nine o'clock. The rest of the family, consisting of a young son of twelve, his sister-in-law, and two small children, and also his hired man, Head, and the defendant, a colored servant girl, between fourteen and fifteen years of age, employed for her food and clothing, had all previously retired to bed between eight and nine o'clock. Mr. and Mrs. Allen slept on the first floor of the house in a bedroom leading from the dining room, and the rest above. At about quarter past ten o'clock, Mrs. Allen was awakened by the smell of smoke. She aroused her husband who was asleep, went to the cellar door, opened it, and discovered a blaze in the basement. Her husband hurried down, and found that some shingles, which had been placed in a partitioned room adjoining a washroom, were on fire; he extinguished the fire with a few buckets of water standing near, which had been drawn by himself and hired man the might before. Mrs. Allen aroused the family, and when Head got down there the fire was extinguished, only some portions of the door and casements of the building being slightly burned. The outside cellar door that led out doors from the washroom could be unbarred from the outside, by a person acquainted, by the removal of a stone between the mason work and the door frame. It had been fastened that night, but was then unbarred, so that it could be opened, the bar being dropped down on the floor at the bottom. It could not be opened and closed without a creaking noise by rubbing on the threshold. The sister-in-law and the children slept in the second story over the first floor, and Head and the defendant slept in the second story of the ell, her room being beyond his, and she usually passed through his room on going to or from her room. Upon the alarm being given she passed through his room in her night clothes before he had got out of bed, and at the request of Mrs. Allen lighted some lamps, and then went with Mr. Allen's son to call in some neighbors. The family soon after retired.

The next morning, Mrs. Allen discovered a half-pint bottle about half full of kerosene, standing at the end of a wood box in the kitchen. She testified that it was not there the night before and she had never seen the bottle before, and that, though she had used a half-pint bottle to pour kerosene on her hens frequently, this was not the one she used. She showed it to her sister and husband, and to the defendant that morning, and inquired if they knew how it came there, and they all answered in the negative. They kept kerosene in a two gallon can, and another smaller can kept on a shelf under the sink in the kitchen. They used kerosene for light. That morning Mr. Allen discovered a considerable amount of kerosene on the shingles beneath where the fire occurred, which had not burned. He showed these shingles and the bottle of kerosene to officers Dayton and Dunham, of New Bedford, who came there on July 7, following. Mr. Allen had previously offered a reward of $ 200 for the detection of the incendiary. Dayton and Dunham caused the kerosene found in the bottle and also that kept in the cans in the house to be tested by an inspector or assayer who pronounced them the same in quality.

On July 10, the defendant, at about four o'clock in the morning, before the family was up, left Mr. Allen's, without his knowledge, and walked to New Bedford, a distance of about eleven miles, and to the house of G. W. Offley, a friend of her parents, and whom she had before frequently visited. Mr. Allen called there for her during the forenoon, and had some conversation about her return and her clothing that she had left, she telling him that she did not wish to return. She afterwards testified that the reason of her leaving as she did was that she was afraid they would not let her go, and that she wanted to live in the city and wanted wages.

In the forenoon of July 14, she remaining at Offley's, Dayton, a police officer of New Bedford, and Dunham, a state constable, called at Offley's house, not having a warrant, and found the defendant shelling peas. Dayton said to her, "Ellen, I want you." She got up, went up stairs followed by Dayton, got her bonnet, and came down. Mrs. Offley was then there and inquired what was up. Dayton replied, "We want her to go down town." Mrs. Offley then said, "Tell the whole truth." They went with her in a carriage to the police station of New Bedford, a distance of about a mile and a half, and as she was going into a cell under the charge of Dunham, and had just got inside when Dayton said to Dunham, "Hold up, let us talk here." They then sat down near the cell door, and Dayton asked her why she left Allen's, and she said she was tired and wanted to live in the city. Dayton then said, "Ellen, I suspect you of setting the fire," and asked her if she did. The defendant objected to evidence of what she said at that time in the nature of a confession, on the ground that what she said was under intimidation in the nature of threats or promises, though there was no evidence of verbal threats or promises. The judge overruled the objection, and the evidence was admitted. Dayton and Dunham then testified, substantially, that in answer to their questions while sitting there, and no other person present, she said that on Sunday afternoon, (the day of the fire,) when filling the lamps, she went down cellar where there were bottles, took a bottle from there, filled it with kerosene from the can, and set it on the shelf in the kitchen, and at night, when she thought they were all asleep, she came out through Head's room, down stairs, took the bottle, and went through the dining room into the front entry and down the cellar stairs leading from there, and she poured some of the kerosene on the shingles, put a match to them, then took the bar from the outside cellar door, and laid it so it would look as if some one from outside had unfastened it; that she did not open the door, as it would creak on the bottom; that she then came up stairs, and as she passed through the kitchen she set the bottle, being about half full, at the end of the wood box, where Mrs. Allen found it the next morning, and then passed up stairs to her own room, and had just got into bed when she heard Mrs. Allen give the alarm, and she came down, as has been stated. She was then shown the bottle by Dunham, and said she knew that it was the bottle by the dirt that was in the bottom. She was asked if she knew them (Dayton and Dunham) when they were at Allen's on July 7. She replied that she did, and if they had then asked her she would have told them the same; that she was sorry as soon as she did it.

She was then put into the cell, and shortly afterwards, within a few minutes, one Hammond, an officer, saw her in the cell crying, and asked her what she was in there for, and she replied, "For setting a fire."

Mrs Allen testified that her bedroom adjoined the dining room, that her door that led into it was open, but the doors that led into the kitchen and front entry through which Ellen passed were...