Commonwealth v. Snyder

Decision Date07 April 1933
Citation282 Mass. 401,185 N.E. 376
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Appeal from Superior Criminal Court, Middlesex County; Hammond, Judge.

Herman Snyder and John A. Donnellon were found guilty of murder in the first degree, and they appeal on assignments of error.

Judgment on the verdict.A. C. Webber, W. J. McCarty, and L. H. Weinstein, all of Boston, for appellants.

F. G. Volpe, Asst. Dist. Atty., of Boston, for the Commonwealth.

PIERCE, Justice.

This case comes before this court on appeal on assignments of error. The defendants, with one James T. Garrick, were indicted for murder in the first degree of one James M. Kiley at Somerville on April 9, 1931. The defendants Herman Snyder and John A. Donnellon were put on trial and found guilty of murder in the first degree. Both defendants claimed an appeal and assigned as errors the judge's ruling to proceed with the trial without Garrick; the judge's denial to allow the defendants to interrogate certain persons called as jurymen; and numerous exceptions taken during the trial to the admission and exclusion of evidence. The defendant Snyder also excepted (1) to the judge's denial of his motion to accompany the jurymen to a view; (2) to a denial of his motion for a directed verdict; (3) to the refusal to give the jury certain requests; and (4) to the denial of his motion that the jury be polled after the verdict.

The evidence is voluminous but the salient facts may be briefly summarized as follows: On April 9, 1931, at about 7:45 P. M. one James M. Kiley was shot and killed while employed as an attendant in the gasoline station operated by the Cities Service Refining Company on Somerville Avenue in Somerville. A government witness, William M. McNulty, testified that he was across the street from the gasoline station and heard a shot and then saw two young men rush out of the gasoline station and get into a moving automobile which disappeared in the traffic. He ran over to the gasoline station, saw the deceased on the floor, still conscious, but unable to talk, and in his right hand, between the second and third fingers, was a burning cigarette.

Kiley was removed to a hospital and was pronounced dead when he arrived. The bullet went through his heart and out through his back, striking a pane of glass located on the east side of the gasoline station. The police found the bullet back of an oil tank standing beside the rear door; the shell was found on a rack of oil containers at the right of the entrance of the station.

On April 29, 1931, the Boston police raided a second floor room in a rooming house conducted by a Mrs. McPherson at 665 Massachusetts Avenue, Boston. In this room they found three revolvers, one of which was a thirty-two automatic, which the jury would be warranted in finding killed the deceased. Donnellon had left the room just previous to the raid. In the room were four men, one of whom was Garrick. He, Donnellon, and two other men, and a girl, Gertrude Rogers, who was a friend of Donnellon and occupied a room on the fourth floor, were arrested. Snyder had left Boston at this time. Donnellon was later released, but Garrick was held.

On April 4, 1932, Snyder was apprehended in Philadelphia where he had assumed the name of Peter Manuel. After his arrest he admitted his identity and signed a statement that on April 9, 1931, he and Donaldson (Donnellon) went into the gasoline station in Somerville to hold up the man and rob him; that he did not fire the shot that hit the man; that he heard a shot and ran and got into the automobile which Garrick had stolen and was driving. Snyder was brought back to Somerville, and in the presence of a stenographer amplified his original statement.

On April 14, 1932, the defendant Donnellon was apprehended in California. He was brought back to Massachuetts. En route he made a statement to the chief of police of Somerville admitting his part in the affair and implicating Snyder and Garrick. Upon his return, in the presence of a stenographer, he admitted that he, together with Snyder and Garrick on April 9, 1931, started out with the purpose of holding up some one; that they stole an automobile on St. Botolph Street. Boston; that Snyder drove it and just before they got to the gasoline station in Somerville where the deceased worked Garrick took the wheel; that one of them said, ‘That looks like a pretty good place,’ and they decided to go in; that it was understood that Donnellon and Snyder were to go in the station and Garrick was to remain at the wheel; that they all three had loaded revolvers; that on the way to Somerville the defendant Snyder changed guns with Garrick, Snyder receiving the thirty-two automatic pistol from which the bullet that killed the deceased was fired; that Donnellon went into the station first and Snyder was over to the left of him, in back; that the deceased was just hanging up the receiver of the telephone which was on the side of the wall, and Donnellon said to him ‘Stay where you are’; that the deceased kept walking toward him and grabbed his necktie, and that he heard a shot and ran out of the gasoline station with Snyder; that at that time he had a thirty-two revolver and Snyder had a thirty-two automatic; that they jumped into an automobile which Garrick was driving and went in the direction of Union Square and then to Boston, where they abandoned the automobile; that before abandoning it they rubbed from it the finger prints; that they went back to the room on Massachusetts Avenue, and the gun that did the shooting was there cleaned by Snyder with oil and, with the other two guns, was hidden. Snyder testified that as he got in the car he said to Garrick, ‘Beat it’; and Garrick testified that Snyder said: ‘I have shot the man.’

The statements of Snyder and Donnellon made before the trial do not agree on the possession of the thirty-two automatic and as to just what occurred at the gasoline station. Snyder's statement in substance was that he had a revolver, that he thought Donnellon had an automatic; that Donnellon walked into the gasoline station and he walked in after him; that when he got in there Donnellon and Kiley were not grabbing each other but something like that; that he closed the door, heard the noise of a shot, and ran out; and that Donnellon came out after him. On the witness stand Snyder testified that he was half way in the station, saw Donnellon and Kiley fighting, sparring like, and that he said ‘Beat it’ and ran out; that he heard a shot when he was just stepping in the automobile, and that after he got in Donnellon got in. Donnellon's testimony on the stand was in substantial agreement with his previous statement, except that on the stand he testified that he had just got outside the door when he heard the shot. On the witness stand Garrick testified in substance in accord with the testimony of Donnellon. He testified that Snyder and Donnellon told him that they were going out to hold up a store or somebody and that he decided to go with them; that he had the big automatic (which was in evidence exhibit 26), gave Donnellon the hammerless and Snyder had the twenty-five automatic; that Snyder asked for the big automatic and he swapped with him and took the twenty-five automatic. He testified that he drove right opposite the door of the gasoline station and Snyder and Donnellon went in; that after the shot both ran out of the gasoline station; that when Snyder got in the car he said ‘For Christ's sake get out of here’ ‘I have shot the man’ and that after they returned to Boston they poured oil through the one gun, wiped off the three guns, and put them away.

Evidence was given by a ballistic expert to the effect that he had made experiments with the shell and bullet found in the gasoline station with a thirty-two automatic pistol, identified as the one which Snyder had (if the testimony of Donnellon and Garrick is believed) at the time of the shooting, and expressed the opinion that the bullet that killed Kiley was fired from that particular gun. It was admitted at the trial that James M. Kiley, the individual named in the indictment, died on the night of April 9, 1931, as a result of a gunshot or pistol wound.

Certain specifications were filed at the request of Snyder. In these specifications it is contended by the Commonwealth that Snyder did the actual shooting. The request of Snyder and the answer of the Commonwealth were read to the jury against the objection of the defendant Snyder.

We now consider the assignments of the defendant Snyder.

1. The first assignment of error is based on exceptions one and two and relates to the allowance of the motion by the Commonwealth that the trial proceed against Snyder and Donnellon and not against Garrick. The question of separate or joint trials rests in sound judicial discretion, Commonwealth v. Gallo, 275 Mass. 320, 326, 175 N. E. 718, 79 A. L. R. 1380,Commonwealth v. Borasky, 214 Mass. 313, 101 N. E. 377,Commonwealth v. Sacco, 255 Mass. 369, 413, 151 N. E. 839, which was not abused on the reported evidence in this case. The contention that the exercise of judicial discretion required a hearing upon facts presented to the judge in support of the request of the district attorney is not supported by the decisions. The judge appears to have acted in the exercise of his discretion and the question is not presented whether (as has been said) it is optional with the prosecuting attorney to try the defendants jointly or separately unless the judge grants a severance on the motion of one or more of the defendants. United States v. Wilson, 28 Fed. Cas. Page 699, No. 16,730;People v. Clark, 102 N. Y. 735, 8 N. E. 38; Reg. v. Richards, 1 Cox C. C. 62. See State v. Francis, 152 S. C. 17, 149 S. E. 348, 70 A. L. R. 1133, and, on the issue raised by the defendant, note to that case and collection of cases in 70 A. L. R. 1171, 1178, 1179.

2. The second and third...

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