Commonwealth v. Wakelin

• Decision Date: 26 June 1918
• Citation: 230 Mass. 567,120 N.E. 209
• Parties: COMMONWEALTH v. WAKELIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 567

120 N.E. 209

COMMONWEALTH

v.WAKELIN.

Supreme Judicial Court of Massachusetts, Middlesex.

June 26, 1918.

Exceptions from Superior Court, Middlesex County; Patrick M. Keating, Judge.

Joseph Wakelin was convicted of manslaughter, and he excepts. Exceptions overruled.

Nathan A. Tufts, Dist. Atty., of Waltham, and F. W. Fosdick, Deputy Dist. Atty., of Boston, for the Commonwealth.

Wm. R. Scharton and Henry J. Barry, both of Boston, for defendant.

RUGG, C. J.

[1][2][3] The defendant on June 21, 1917, pleaded not guilty to an indictment charging him in the statutory form with the crime of murder, attempting at the same time to reserve ‘the right to file special pleas later.’ There is no rule of practice or procedure whereby a defendant in a prosecution for crime may plead to the general issue and as of right reserve the privilege of filing thereafter, either by way of substitution or otherwise, motions, pleas, or other matters in their nature preliminary, such as a ‘plea in abatement’ or a ‘motion to dismiss.’ Whether a plea of not guilty or of guilty, entered either in the absence or by advice of counsel, may be retracted and other pleadings filed, is a matter wholly for the court to determine in its discretion. Commonwealth v. Chapman, 11 Cush. 422;Commonwealth v. Blake, 12 Allen, 188;Commonwealth v. Ingersoll, 145 Mass. 381;¹Commonwealth v. Mahoney, 115 Mass. 151. The plea of not guilty was in effect a waiver of matters in abatement. Commonwealth v. Lewis, 1 Metc. 151, 152.

*. 14 N.E. 449.

[4] The presiding judge simply permitted the defendant to file motions praying that he be permitted to file the preliminary plea, and after a hearing refused to allow it to be filed. The motion to dismiss alleged substantially the same reasons and stands on the same footing. Manifestly there was no error in this regard. Whether such motions be allowed or denied rested in the discretion of the judge. The judicial discretion appears to have been exercised wisely. Whatever of substance there may have been in the plea or motion, if any, is not before us on the merits. Commonwealth v. Tucker, 189 Mass. 457, 463, 76 N. E. 127,7 L. R. A. (N. S.) 1056;Commonwealth v. Hayden, 163 Mass. 453, 40 N. E. 846,28 L. R. A. 318, 47 Am. St. Rep. 468.

The motion to quash is grounded on the contention that the indictment does not follow the statutory form for murder set out in the schedule of forms annexed to R. L. c. 218, at page 1850. It is not now open to argument that the statutory form is inadequate. It is settled that it is sufficient. Commonwealth v. Jordan, 207 Mass. 259, and cases collected at 266, 93 N. E. 809;Commonwealth v. Allison, 227 Mass. 57, 61, 116 N. E. 265. The indictment in the case at bar follows the skeleton form of the statute without amplification. In the particulars that it omits any averment as to the manner in which the defendant assaulted and beat the deceased, as to the wound given, or the part of the body upon which the mortal injury was inflicted, or the time of death, it follows precisely the one held sufficient in the leading case of Commonwealth v. Jordan, supra. The motion to quash was overruled rightly, whether treated as relating to form or substance. It is of no consequence in this connection whether the motion be treated as a motion to quash or as a request to be allowed to file such a motion. In either event no right of the defendant has been affected.

[7] The hearing of the several motions of the defendant, after the jury were impaneled rather than before—but in their absence—presents no erroneous ruling of law under the circumstances here disclosed.

There was no error in the denial of parts of the defendant's motion for a bill of particulars. The specifications filed by the commonwealth in addition to the allegations of the indictment furnished to the defendant ample information as to the nature and grounds of the crime with which he was charged. The crime thus was ‘fully and plainly, substantially and formally described’ to him as required by the Constitution. Details of the assault, particularity respecting the cause of death, and precise nicety as to the relation of the beating to the fatal result, are not required. The refusal of the requests for particulars, so far as denied, was within the discretion of the court and his ruling was justified upon the authority of Commonwealth v. King, 202 Mass. 379, 88 N. E. 454,Commonwealth v. Kelley, 184 Mass. 320, 68 N. E. 346, and Commonwealth v. Jordan, 207 Mass. 259, 266, 267, 93 N. E. 809. The indictment did not allege and there is nothing to indicate that the assaulting and beating were done with any instrument or implement. On this and perhaps on other grounds the case at bar is quite distinguishable from Commonwealth v. Sinclair, 195 Mass. 100, 80 N. E. 799,11 Ann. Cas. 217.

[9][10][11][12][13] The district attorney was permitted to file a paper entitled a ‘disclaimer.’ There is no such pleading as a disclaimer known to our system of criminal pleading and practice. It is an appropriate descriptive term in pleading in real actions, Prescott v. Hutchinson, 13 Mass. 439; and under trustee process, Mortland v. Little, 137 Mass. 339; and it is familiar in patent law, and perhaps in other connections. The character of a pleading, however, is commonly to be determined by the nature of its averments and not by the name attached to it. An analysis of the paper here in question shows that in substance it is a declaration by the district attorney that he will not ask for a conviction of the defendant for the crime of murder in either the first or second degree, but will only contend for his conviction of the crime of manslaughter. In substance that is a voluntary declaration that he will not further prosecute the portions of the indictment alleging the circumstances of aggravation which distinguish that kind of homicide constituting murder from the less heinous offense of manslaughter. The correct expression of that declaration by a district attorney is nolle prosequi. Commonwealth v. Casey, 12 Allen, 214, 218. It is within the power of a district attorney to enter a nolle prosequi either as to an entire indictment, or any count thereof, or any distinct and substantive part of it so long as there remains a charge of an offense originally set forth. Commonwealth v. Tuck, 20 Pick. 356, 366;Commonwealth v. Dunster, 145 Mass. 101, 13 N. E. 350. The district attorney may at his own pleasure enter a nolle prosequi. Commonwealth v. Tuck, 20 Pick. 356, 366, 367;Lizotte v. Dloska, 200 Mass. 327, 86 N. E. 774. The right and brief form of statement in the case at bar would have been that he would not further prosecute so much of the indictment as charged any higher crime than that of manslaughter or, as charged, murder in either degree, or some similar phrase. But the substance of what was undertaken is plain. It was in effect a nolle prosequi of so much of the indictment as charged a crime of higher magnitude than manslaughter. That is a well recognized part of criminal procedure. The statement filed by the district attorney is not susceptible of misunderstanding as to its essence and its real effect. It would be sacrificing substance to unimportant form to hold that the defendant had suffered any harm by reason of this irregularity.

It is well established that upon an indictment for murder a defendant may be found guilty of manslaughter. The lesser homicide is included in the charge of the greater. The present indictment does not contain the word ‘kill,’ which is aptly descriptive of the crime of manslaughter. It was in this form:

‘The jurors for the Commonwealth of Massachusetts on their oath present that Joseph Wakelin on the first day of June in the year of our Lord one thousand nine hundred and sixteen, at Melrose in the county of Middlesex aforesaid, did assault and beat Lauretta W. Wakelin, with intent to murder her, and by such assault and beating did murder Lauretta W. Wakelin, against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided.’

But ‘kill’ is not such a word or act as to be absolutely requisite to a description of the crime of manslaughter. As was said by Chief Justice Shaw in Commonwealth v. Roby, 12 Pick. 496, 504, 505:

‘The indictment for murder necessarily charges the fact of killing, as the essential and most material fact, which gives its legal character to the offense.’

Murder of necessity imports the killing of a human being. See Commonwealth v. Chance, 174 Mass. 245, 252, 54 N. E. 551,75 Am. St. Rep. 306. The statutory definition of ‘murder’ as used in an indictment is:

‘The killing of a human being with malice aforethought.’ R. L. c. 218, § 38.

If the indictment in the case at bar had charged that the defendant did kill the deceased with malice aforethought, it could not rationally be contended that it would not be sufficient to support a verdict of manslaughter. It is equally sufficient to that end when the more succinct word ‘murder’ is used. If the amplified phrase above supposed had been used, probably no one would urge that the district attorney could not enter a nolle prosequi as to so much of the indictment as charged that the homicide was committed ‘with malice aforethought.’ It is equally in his power to do so when the only word used is the more comprehensive term ‘murder,’ which is, both according to statutory definition and common and approved usage of the language, the exact equivalent of the longer expression. In principle this point is concluded against the defendant by Commonwealth v. Dean, 109 Mass. 349. See, in this connection, Commonwealth v. Hall, 142 Mass. 454, 8 N. E. 324, and R. L. c. 219, § 14.

After the entry of the nolle prosequi by the district attorney, the highest crime for which the defendant could be tried on the indictment was manslaughter. The defendant was put upon his trial for manslaughter and not for murder. Hence he was not...