Commonwealth v. Stewart

• Decision Date: 01 March 1926
• Citation: 151 N.E. 74,255 Mass. 9
• Parties: COMMONWEALTH v. STEWART.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 9

151 N.E. 74

COMMONWEALTH

v.STEWART.

Supreme Judicial Court of Massachusetts, Middlesex.

March 1, 1926.

Appeal from Superior Criminal Court, Middlesex County.

Richard Stewart, alias Frank Johnson, was found guilty of murder in the first degree, and he appeals. Judgment on the verdict.

1. Criminal law k474-Evidence of expert as to whether one of approximately 13 years had mental ability to plan act and could possess malice held competent.

In murder prosecution, where defendant introduced expert testimony that his mental level was around 12 years of age, evidence of expert for the commonwealth that one of approximately 13 years of age had mental ability to plan act and could possess malice was competent.

2. Criminal law k48-Criminal responsibility depends, not on mental age, but on whether defendant knows difference between right and wrong, understands his relations with others, and is able to perceive consequences of his acts.

Criminal responsibility does not depend on mental age of defendant, nor on question whether his mind is above or below that of the average normal man, but on question whether he knows difference between right and wrong, can understand his relation to others, and that which others bear to him, and has knowledge of the nature of his act, so as to perceive its consequences.

3. Criminal law k483-Question to expert as to whether one of approximately 13 years had mental ability to plan an act and could possess malice held not objectionable in form.

In murder prosecution, where defendant introduced expert testimony that his mental level was around 12 years of age, questions by commonwealth to its expert as to whether one of approximately 13 years had sufficient mentality to have evil motives or malice, or had ability to plan an act, held not objectionable in form.

4. Criminal law k554-Statement of prisoner to jury in homicide prosecution is not evidence (Declaration of Rights, art. 12; G. L. c. 233, s 20).

In view of Declaration of Rights, art. 12, and G. L. c. 233, s 20, statement or address of defendant in murder prosecution at close of arguments, and before the charge, is not evidence, but may be considered by jury for its worth in light of all conditions under which it is given.

5. Criminal law k786(5)-Charge that jury must differentiate between sworn testimony and defendant's statement not under oath was proper.

In murder prosecution, where defendant, at close of arguments, and before charge, availed himself of privilege to address jury, charge that his statement was not evidence, and that in considering case jury must differentiate between sworn testimony and his statement not under oath, was proper.

J. H. Gilbride, of Lowell, for appellant.

R. T. Bushnell, Asst. Dist. Atty., of Boston, for the Commonwealth.

RUGG, C. J.

This is an indictment on which the defendant has been found guilty of murder in the first degree. The case comes before us under the practice established by St. 1925, c. 279.

[1] The defendant has been permitted to introduce the testimony of a person, who qualified as an expert, to the effect that from an examination it was his opinion that the mental level of the defendant ‘would be somewhere around twelve years of age * * * that he was not insane nor feeble minded, but low-grade mental capacity, just above the feeble minded level.’ This evidence was suffered to remain in the case notwithstanding a motion by the commonwealth that it be stricken out; but the jury were restricted by the court in their use of it in substance to the point whether the defendant was of sufficient mental capacity to have an evil motive for the killing and to hold that motive in his mind for any appreciable length of time. Neither the competency of that evidence nor the correctness of this ruling need be considered. In this state of the case the commonwealth was permitted, subject to exception by the defendant, to ask of a qualified expert in mental diseases these questions, all of which were answered in the affirmative: Whether or not a person of the age of approximately thirteen years is of sufficient mentality to have evil motives or malice? Whether or not a person of the mental age of thirteen years has the mental ability to plan an act? Whether or not a person of the mental age of thirteen years has the power, the mental power, to premeditate, to plan an act? Whether or not, from your examination of this defendant, in your opinion he has a mentality sufficient to possess malice or evil motives?

[2] It is plain that the posture of the case was such that the evidence thus introduced by the commonwealth was competent. It was in conformity to the true principle of law as to responsibility for homicidal conduct. The evidence had a tendency to show whether the defendant had capacity and reason sufficient to enable him to distinguish between right and wrong as to the act charged against him and to do that act with deliberately premeditated malice aforethought. Criminal responsibility does not depend upon the mental age of the defendant nor upon the question whether the mind of the prisoner is above or below that of the ideal or of the average or of the normal man, but upon the question whether the defendant knows the difference between right and wrong, can understand the relation which he bears to others and which others bear to him, and has knowledge of the nature of his act so as to be able to perceive its true character and consequences to himself and to others. All this is amplified in Commonwealth v. Rogers, 7 Metc. 500,41 Am. Dec. 458, which constantly has been followed in this commonwealth. Commonwealth v. Johnson, 74 N. E. 939, 188 Mass. 382;Commonwealth v. Cooper, 106 N. E. 545, 219 Mass. 1;People v. Schmidt, 110 N. E. 945, 216 N. Y. 324, 332, 336, L. R. A. 1916D, 519, Ann. Cas. 1916A, 978.

[3] In view of the evidence introduced by the defendant, the questions were not objectionable in form. It was not necessary to frame them with hypothetical qualifications and circumstances. Without impairing in the slightest degree all that is said in Commonwealth v. Russ, 122 N. E. 176, 232 Mass. 58, 73-76, it is enough to decide that there was no error in the admission of the several questions to which exception was saved. No point has been made of the difference between ‘around twelve years' and ‘thirteen years' in the testimony of the two expert witnesses and no importance is attached to it.

[4] At the close of the arguments of counsel and before the charge, the defendant, who had not taken the stand as a witness, availed himself of the privilege accorded him by the court and addressed the jury briefly, in substance saying that he did not plan to kill the deceased and that having been drinking he did not know what he did. The jury were charged in effect, subject to exception by the defendant, that this statement by the prisoner was not evidence, and that in considering the case they must differentiate between sworn testimony and the statement not under oath; and that the statement could be regarded only as pointing out those matters which the defendant wished to bring strongly to the attention of the jury; and that, although not evidence, what he said could and ought to be considered as a statement of the defendant of what he claimed to be the facts in the case. The question is thus raised as to the nature of such a statement made by a prisoner upon his trial charged with murder and the consideration to be given it by the jury.

This question, so far as we are aware, has never been presented for decision in the official reports of this commonwealth. References to the subject in our reports are rather meager.

It was said in Commonwealth v. McConnell, 39 N. E. 107, 108, 162 Mass. 499, at 501, decided in 1895:

‘In prosecutions for high treasonin England, and in capital trials here, it has been the practice to allow the prisoner, at some stage of the trial, to make to the jury such a statement as he might choose. * * * In capital trials in this commonwealth a somewhat similar practice has prevailed, and it is not modified or abandoned in cases where the prisoner avails himself of his right to give testimony in his own behalf. But the practice as to the time of the statement has been uniform, and the proper time is after the arguments of both counsel, and immediately before the charge to the jury.’

In Commonwealth v. Burrough, 39 N. E. 184, 162 Mass. 513, where the defendant was on trial for a felony less than homicide, it was said:

‘The defendant had no right, without being sworn as a witness, to make a narrative statement to the jury, or to tell them his side of the story. * * * The refusal of the court to permit him to make any statement to the jury except by way of argument, unless he was first sworn as a witness in his own behalf, was correct, as was the final exclusion of his proposed statement when he declined either to be sworn or to agrue the case.’

By way of illustration reference was made in Commonwealth v. Dascalakis, 140 N. E. 470, 479, 246 Mass. 12, at 32, to the fact that in ‘capital cases at the appropriate time the defendant has a right to make an unsworn statement to the jury.’

It is said in 1 Wigmore on Evidence (2d Ed.) § 579, that it became ‘customary in England to allow the accused to made a ‘statement’ to the jury, i. e., to tell his story, not on oath and not as a witness, but in the guise of an address or argument on the testimony and the whole case.'

The practice in the English courts, as to the weight to be given to the statement of the defendant and the time during the trial for it to be offered, appears not to have been uniform. Reg. v. Beard, 8 C. & P. 142; The Queen v. Manzano, 2 F. & F. 64; Reg. v. Malings, 8 C. & P. 242; Reg. v. Shimmin, 15 Cox. C. C. 122, 123, 124; Rex v. Sherriff, 20 Cox. C. C. 334; Trial of Thistlewood, 33 How. State Trials, 682, 894; Trial of Ings, Id. 958, 1107-1111. See for a review of English cases, Rex v. Krafchenko,...