Commonwealth v. Wita
| Decision Date | 03 December 1934 |
| Parties | COMMONWEALTH v. WITA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Annie Wita was convicted of murder in the second degree, and she appeals with an assignment of error alleged to have been committed at the trial in the superior court.
Affirmed.
Appeal from Superior Court, Middlesex County; Collins, Judge.
John F. Daly and Eleanor L. Daly, both of Boston, for appellant.
W. L. Bishop, Dist. Atty., of Wayland, and P. R. Foisy, Asst. Dist. Atty., of Lowell, for the Commonwealth.
The defendant was convicted, in the second degree, of the murder of her husband. The case comes here by appeal, with a summary of the record, a transcript of the evidence, and an assignment of errors, under G. L. (Ter. Ed.) c. 278, §§ 33A-33G.
No witness saw the commission of the crime. A dying declaration made by the husband in the presence of the defendant, several police officers, and other persons, was essential to the case for the commonwealth. The husband said that, while lying on a bed, he saw the defendant pour gasolene over him and ignite it with a match. He said this in plain though broken English, which several witnesses understood, and also in substance in Lithuanian, which a young woman named Nellie Nichunski understood, according to her testimony.
The errors assigned relate only to the denial of motions for a new trial. As newly discovered evidence, the defendant presented the testimony of an expert in the Lithuanian language, that his examination of Nellie Nichunski showed that her knowledge of that language was very limited. This testimony, if believed, did not require a new trial. There was ample evidence of substantially the same dying declaration in English.
The motion for a new trial on the ground that the verdict was against ‘the law as instructed by the presiding justice’ and against ‘the evidence and the weight of the evidence,’ was addressed to the discretion of the judge, who was not bound to make express findings of fact. Commonwealth v. Polian (Mass.) 193 N. E. 68, and cases cited. The evidence fully supported the verdict, and the defendant points out no failure of the jury to follow the charge.
Judgment affirmed.
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