Commonwealth v. Taylor
| Decision Date | 17 April 1928 |
| Citation | 161 N.E. 245,263 Mass. 356 |
| Parties | COMMONWEALTH v. TAYLOR. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Criminal Court, Essex County.
George Elmer Harrison Taylor, alias, was convicted of murder in the first degree, and he appeals. Exceptions overruled. Judgment on verdict.J. H. O'Neil, of Boston, and F. E. Rafter, of Salem, for appellant.
W. G. Clark, Dist. Atty., of Gloucester, E. F. Flynn, Asst. Dist. Atty., of Lynn, and F. E. Raymond, Asst. Dist Atty., of Ipswich, for the Commonwealth.
This is an appeal, on an assignment of errors under St. 1925, c. 279, from a conviction of the defendant of murder in the first degree of Stella Pomkala, age twenty, at Salisbury Beach, in the town of Salisbury and county of Essex.
At the trial there was evidence, undisputed by the defendant, which warranted a jury in finding the following facts: On the evening of June 5, 1927, the deceased left the studio of her employer at Salisbury Beach for a walk, wearing on her wrist a Waltham watch and on her finger a ring. At 7:30 a. m. her body was found strangled on the beach some distance from the studio. There were marks in the sand which indicated a struggle. Her body was lying on its back, head toward the water, legs spread apart, dress above her knees, and her bloomers cut in five or six pieces with a very long knife, a razor or scissors.
The autopsy disclosed bruises in both upper lids of her eyes and hemorrhage to the membrane covering the eyes, showing ‘the sort of thing that would come from the pressure of fingers or thumbs.’ A series of bruises across her neck and down the side of her neck, bruises and an abrasian on her hand, which ‘might well have been produced by the tearing of a wrist watch down over the back of the hand,’ laceration of the lesser lips of the vagina and a laceration of the fourchette, which ‘might have been the result of the application of a male organ.’ The autopsy further disclosed that the deceased was a virgin, that no instrument or implement was used in the commission of the murder, and that the marks on her face, neck, hands, vagina and fourchette were imposed on the deceased before her death.
There was uncontradicted evidence that the defendant, wearing ‘goggles' similar to those found near the body, was on Salisbury Beach Sunday night, June 5, 1927; that he had an odor of liquor on his breath; that at 10:30 p. m. he was seen going in the direction of that part of the beach where the body was found, and that at 11:05 p. m. he was seen without goggles, coming from the part of the beach where the body was found; and that the wrist watch which the deceased was wearing at the time of her death was sold by the defendant to a man named Dowe, who turned it over to the authorities. There was evidence that the defendant on June 4 and 5 was employed as a barber at Hampton Beach, New Hampshire; that about noon on June 5, he purchased and drank a pint of witch hazel; that between noon and 3:30 in the afternoon he purchased and drank three bottles of witch hazel and a pint of ‘moonshine’ whisky; that about 3:30 in met some men, was offered and accepted a ride; that the men had a combination of alcohol and water and he drank some of it. He testified, in substance, that he had no recollection of what happened after he took the last drink, between Hampton Beach and the town of Hampton, until he woke up the next morning at the ‘Salvation Army Palace’ in Boston.
At the trial the commonwealth offered and the court received in evidence, against the exceptions of the defendant, a criminal record of the state of West Virginia, showing that the defendant on March 10, 1913, was convicted of robbery and sentenced to five years at the West Virginia penitentiary. It is the contention of the defendant that under G. L. c. 233, § 21 (third), the record was not admissible because the day, October 18, 1927, when the defendant testified, was ‘after ten years from the date of expiration of the minimum term of imprisonment imposed by the court.’ The statutes of West Virginia upon which the defendant relies to establish his contention that the minimum term of his sentence had expired more than ten years before the day of his testimony are the Acts of 1882, c. 118, § 12, fixing the penalty of robbery and the place of the execution of it; the Act of 1882, c. 154; and the Act of 1893, c. 46, § 26, which reads:
‘All convicts sentenced to the penitentiary for a term of two years or more, and not for life, who may faithfully comply with all the rules and regulations of the penitentiary during his, or her term of confinement, shall be entitled to a diminution of time from such sentence of five days per month during his or her term of confinement: Provided, however, that any infraction of such rules and regulations by a convict shall, as to such convict, operate only as a deprivation of such diminution of time for the month in which such infraction of the rules and regulations occurs, and for as many of the preceding months of said convict's term of confinement as in the judgment of the warden will be equitable and just.’
The defendant's sentence, which would have expired nominally on ‘November 14, 1916,’ had he observed the rules and regulations, was extended ‘480 days' during his incarceration at the West Virginia penitentiary, and they ‘were added to his sentence for violation of certain rules of that institution.’ It is obvious the right to a diminution in the sentence imposed was not absolute, but was conditional upon obedience to the rules and regulations of the penitentiary, and that without such obedience no right to a diminution is conferred by the statute. The evidence was admitted rightly. The sentence expired in fact on ‘March 9, 1918,’ that is, within ten years before October 18, 1927, and the exceptions must be overruled.
The second assignment of errors arises on the exceptions saved to the refusal of the judge to rule:
(1) ‘On all the evidence the commonwealth has not shown, as a matter of law, that the murder was committed with the extreme atrocity or cruelty necessary to a verdict of murder in the first degree;’ (2) ‘the death by strangulation of the deceased, Stella Pomkala, in the manner shown by the commonwealth, was not extreme atrocity or cruelty;’ (3) and (4) ‘the word ‘extreme’ as used in chapter 265, § 1, of the General Laws, transcends the ordinary atrociousness and cruelty ordinarily associated with murder.'
The recital of the facts, supra, and the circumstances under which the deceased was robbed, raped and murdered would seem to silence every doubt that the judge acted rightly in submitting to the jury the question whether the atrocity or cruelty of the murder was...
To continue reading
Request your trial
-
Commonwealth v. Di Stasio
...v. Feci, 235 Mass. 562, 571, 127 N.E. 602;Commonwealth v. Devereaux, 256 Mass. 387, 393, 394, 152 N.E. 380;Commonwealth v. Taylor, 263 Mass. 356, 360, 361, 161 N.E. 245;Commonwealth v. Knowlton, 265 Mass. 382, 163 N.E. 251. No one of these decisions deals with instructions as to the guilt o......
-
Com. v. Henson
...177, 186, 274 N.E.2d 802 (1971); Commonwealth v. Delle Chiaie, 323 Mass. 615, 617-618, 84 N.E.2d 7 (1949); Commonwealth v. Taylor, 263 Mass. 356, 362-363, 161 N.E. 245 (1928). Cf. Commonwealth v. Perry, 385 Mass. 639, 648-649, 433 N.E.2d 446 (1982) (instruction on defendant's intoxication a......
-
Commonwealth v. Tremblay
...the law recognizes that "the effects of liquor upon the mind and actions of men are well known to everybody," Commonwealth v. Taylor, 263 Mass. 356, 362, 161 N.E. 245 (1928), the term intoxication does not have a single, uniform meaning. "Liquor affects individuals in various ways and it is......
-
Com. v. Gould
...177, 186, 274 N.E.2d 802 (1971); Commonwealth v. Delle Chiaie, 323 Mass. 615, 617-618, 84 N.E.2d 7 (1949); Commonwealth v. Taylor, 263 Mass. 356, 362-363, 161 N.E. 245 (1928). This rule "is merely an application of the ordinary rules of law pertaining to the requisite mental state for convi......