Commonwealth v. Wood
| Decision Date | 01 February 1939 |
| Citation | 19 N.E.2d 320,302 Mass. 265 |
| Parties | COMMONWEALTH v. GEORGE WOOD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 24, 1938.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.
Accessory. Practice, Criminal, Discretionary control of evidence.
Evidence, Relevancy and materiality, Competency. Abortion.
No abuse of discretion, constituting error prejudicial to a defendant charged with being accessory after the fact who was being tried with the principal offender, occurred when, after he had rested at the close of the Commonwealth's case, which included no evidence of the absence of the relationship with the principal offender necessary under G.L. (Ter. Ed.) c 274, Section 4, to conviction of the crime charged, he was required, in testifying as a witness for the principal offender, to answer in cross-examination questions establishing that absence.
Testimony by a defendant accused of being an accessory after the fact, that he was not related "by blood or marriage" to a woman who was the principal offender and that he saw her for the first time a few months before when he was out of employment and she "gave him a job" as a handy man around her house, warranted a finding of the absence of all the relationships with the principal offender specified in G.L. (Ter. Ed.) c.
274, Section 4.
Conviction of a defendant charged with being accessory after the fact to the crime of unlawful use of an instrument to procure a miscarriage was warranted by evidence that he lived at the home of the principal offender, to whom he was not related within G.L. (Ter. Ed.) c. 274,
Section 4, knew that the principal offender had procured the abortion, and made false statements to police officers investigating the crime for the purpose of misleading them and assisting the principal offender.
Evidence, showing that a defendant on trial for being an accessory after the fact had not assisted an officer investigating the principal crime for the Commonwealth, was competent in the circumstances.
To show knowledge of the commission of the principal crime on the part of a defendant who was charged with being accessory after the fact to the crime of unlawfully using an instrument to procure a miscarriage and who had stated to officers investigating the principal crime that he knew nothing "about that type of work" and "nothing about what goes on" in the principal offender's house, a letter written in his own handwriting concerning treatment for miscarriage, and another letter, found in his possession and addressed to the principal offender, from one apparently seeking an abortion were admissible.
Acts and declarations of one, charged with being accessory after the fact to the crime of unlawfully using an instrument to procure a miscarriage which resulted in death, were admissible in evidence although they occurred before the death.
It was proper at the trial of an indictment charging the defendant, under
G.L. (Ter. Ed.) c. 274, Section 4, with being an accessory after the fact, for the judge to refuse a ruling that one of the elements necessary to conviction was that "the defendant actively aided or assisted the principal to escape arrest or punishment."
INDICTMENT, found and returned on February 8, 1937. The case was heard by Hurley, J., without a jury, and in this court was submitted on briefs.
J. S. Seligman, for the defendant. F. E. Smith, Assistant District Attorney, for the Commonwealth.
The defendant was indicted as an accessory after the fact to the crime, alleged to have been committed by Evelyn Dawn, of unlawfully using an instrument on the body of a woman with intent to procure a miscarriage, in consequence of which the woman died. G.L. (Ter. Ed.) c. 274, Section 4; c. 272 Section 19. The defendant waived a trial by jury and his case was tried before a judge of the Superior Court with the case against Evelyn Dawn. There was a finding of guilty in each case. The defendant filed a claim of appeal and the case is before us on a summary of the record, a transcript of the evidence and eight assignments of error. (G.L. [Ter. Ed.] c. 278, Sections 33A-33G.) The case was here submitted on briefs.
1. The first error assigned by the defendant is the denial by the judge of his motion for a finding of not guilty.
One ground stated in the motion is that "No evidence was offered to show that the defendant was not within the exceptions recited in the indictment." The statute defining the crime of being an accessory after the fact specifically excepts from its application persons within stated degrees of relationship to the principal offender. G.L. (Ter. Ed.) c. 274, Section 4. The indictment in the present case denied that Wood bore to Dawn any of the relationships excepted from the operation of the statute. "In order to convict the defendant the Commonwealth was bound at the trial to prove beyond a reasonable doubt that the defendant was not within any of the exceptions described in the indictment." Commonwealth v. Sokorelis, 254 Mass. 454, 459.
The evidence that had been introduced up to the time the Commonwealth rested its case would not warrant the finding that this burden, which was on the Commonwealth, had been sustained.
When the Commonwealth rested, the defendant, who had not then testified, also rested his case and filed a motion for a finding of not guilty. He was, however, called by Dawn as her first witness. Among other things he testified that he knew nothing of the condition of the deceased either at the beginning or at the end of her stay of a week or more in the Dawn house. He related a conversation with the officers shortly after the death of the deceased, differing from their version, and contradicted a portion of the testimony of one Lewis, who testified for the Commonwealth. At the outset of his cross-examination by the district attorney, he was asked if he was related in any way to Dawn. His counsel objected, stating, in effect, that the lack of evidence negativing any relationship with Dawn was "the substance" of his motion for a finding of not guilty, that such evidence should have been introduced by the Commonwealth in its case in chief, that the witness was "now testifying for Mrs. Dawn," and that counsel for the defendant had refrained from asking the defendant "any question on the case of Commonwealth against Wood." The judge ruled that, as the defendant had taken the stand, he could be asked by the district attorney any relevant question. The defendant took an exception. He was then asked if he was related to Dawn by blood or marriage and answered in the negative. In this there was no error.
A party who has rested his case has the right to introduce, later, competent evidence to rebut evidence of new facts appearing in the testimony of witnesses called by the opponent. Cobb, Bates & Yerxa Co. v. Hills, 208 Mass. 270, 272. Commonwealth v. Howe, 2 Allen, 153, 156. But a trial judge may in his discretion admit evidence offered by a party, after he has closed his case, which does not rebut evidence of facts appearing for the first time in the testimony of witnesses called by his opponent, but is material evidence in the case of the party offering the evidence. Such evidence may be admitted in the discretion of the judge at any stage of the trial, Commonwealth v. Brown, 130 Mass. 279; Commonwealth v. Meaney, 151 Mass. 55; after the plaintiff or the Commonwealth has rested and during the cross-examination of witnesses called by the defendant, Commonwealth v. Eastman, 1 Cush. 189, 197, 217; Carruth v. Bayley, 14 Allen, 532, 537; Commonwealth v. Brown, 130 Mass. 279; Finnegan v. Checker Taxi Co. 300 Mass. 62, 69; see also Blake v. Sawin, 10 Allen, 340, 343; or after both parties have rested, Commonwealth v. Arrance, 5 Allen, 517; Hathaway v. Evans, 108 Mass. 267; Commonwealth v. Smith, 162 Mass. 508; or after the arguments of counsel have begun, Smith v. Merrill, 9 Gray, 144; or even later. See Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 379 , 387; Short v. Farmer, 260 Mass. 102 , 104; Wigmore, Evidence (2d ed.) Sections 1876-1881.
The defendant objected to answering the question whether he was related to Dawn, on the stated ground that such testimony should have been introduced by the Commonwealth before it rested. It was within the discretion of the judge to exclude the testimony or to admit it. He exercised such discretion by admitting the testimony and there is nothing to indicate that he exercised it improperly.
The statute defining the crime of being an accessory after the fact excepts from its provisions a person who is "a husband or wife, or, by consanguinity, affinity or adoption, the parent or grandparent, child or grandchild, brother or sister of the offender. . . ." G.L. (Ter. Ed.) c. 274, Section 4. The testimony of the defendant that he was not related to Dawn "by blood or marriage" was evidence that he was not related to her by "consanguinity" or "affinity" within the meaning of the statute. He did not testify in so many words that he was not related to her by "adoption." There was, however, evidence to warrant an inference that the defendant was not related by adoption in the degrees stated in the statute. A police inspector, who entered the Dawn house with a search warrant found the defendant there and questioned him. When asked by the inspector what he was doing in the Dawn house, the defendant said that he was an employee of Dawn as a sort of handy man doing all types of work around the house, and that he saw Dawn for the first time a few months before when he was out of employment, and she "gave him a job." We think that the judge was warranted in concluding that the defendant was not related to Dawn through adoption in the degrees stated...
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