Commonwealth v. Zelenski

• Citation: 191 N.E. 355,287 Mass. 125
• Parties: COMMONWEALTH v. ZELENSKI.
• Decision Date: 26 June 1934
• Court: United States State Supreme Judicial Court of Massachusetts

287 Mass. 125

191 N.E. 355

COMMONWEALTH

v.ZELENSKI.

Supreme Judicial Court of Massachusetts, Hampden.

June 26, 1934.

Appeal from Superior Criminal Court, Hampden County; Brown, Judge.

Stanley Zelenski was indicted for murder. Following the trial in the superior court wherein the jury returned a verdict of not guilty by reason of insanity, he appeals with assignments of error.

Judgment on the verdict.

T. C. Maher, of Holyoke, for appellant.

T. F. Moriarty, Dist. Atty., of Springfield, and J. F. Kelly, Asst. Dist. Atty., of Holyoke, for the Commonwealth.

RUGG, Chief Justice.

The defendant was indicted for murder in 1924. In March of the following year he was committed to the Bridgewater State Hospital for observation and treatment as to his mental condition; he was returned for trial in March of the current year. See G. L. (Ter. Ed.) c. 123, §§ 100, 100A, 105; Commonwealth v. Spencer, 212 Mass. 438, 99 N. E. 266, Ann. Cas. 1913D, 552;Commonwealth v. Vallarelli, 273 Mass. 240, 173 N. E. 582.

There was evidence tending to show that between eight and nine o'clock on the morning of April 2, 1924, after a heavy fall of snow a girl about fourteen years old, wearing her elder brother's rubber boots, left her home in a suburb of the city of Chicopee to deliver milk, as was her custom, to a neighbor living on another street. She delivered the milk and left in the direction of her home on a way leading past the house of the defendant. She was never seen afterwards, except that a brother of the defendant stated in the presence of the defendant on the evening of that day that on his way to school that morning he saw her ‘coming back’ toward the home of the defendant. About ten o'clock on that morning the defendant was seen dragging a toboggan, on which was a long object covered with burlap or an old rug, from his home toward the Connecticut river, distant about a quarter of a mile. One witness who talked with him ‘heard a little light voice * * * not loud enough to understand’ coming from the bundle on the toboggan; the defendant sat right down on the object and kept hitting it with his hand; on being asked what he had, the defendant replied that he had ‘some cats he was going to drown’; another witness saw him sitting on the front of the toboggan and then get up and kick whatever he had underneath the covering and then go on toward the river. Still another witness on the same morning saw the defendant in a boat coming up the river and he stood up in the boat and ‘took something * * * in his two hands * * * and * * * threw it splash in the water, something heavy, a piece of carpet, I don't know what. After that he sit in the boat.’ The girl was missed from her home. Later in the day a search was made and she was traced by the footprints of the rubber boots to the house of the defendant. The defendant was asked if he had seen the girl and he made no reply. The toboggan track led from the house of the defendant to the river. The river later was dragged and dynamited. One of the rubber boots worn by the girl on the last morning she was seen and a rug or piece of carpet were recovered from the river. Police officers visited the home of the defendant on the evening of April 2, 1924, or on the next day, and found there in the cellar under some wood a space about five feet long, two feet wide and three feet deep, where the earth appeared to have been recently dug and refilled, and two clubs on one of which was a spot that looked like blood and a bit of light hair. The hair of the girl was light in color. There was uncontradicted evidence from qualified medical experts that upon examinations made after April in 1924 and in 1925 the defendant was in their opinion a defective delinquent, that his mental condition could not be cured, that he ‘was a dangerous and irresponsible type of feeble-mindedness,’ that he was not entirely capable, or not capable in a normal way, of appreciating the distinction between right and wrong as to the act which he committed.

Testimony was also admitted subject to the exception of the defendant, from two police officers, of a full narration made by the defendant on the next day after the disappearance of the girl, and perhaps also on a later day, of his conduct toward her on that date. This narration was a confession with admission of many details by the defendant (Commonwealth v. Haywood, 247 Mass. 16, 18, 141 N. E. 571) that he took her life and threw the body into the river from his boat.

At the conclusion of the evidence the counsel for the defendant asked that a verdict of not guilty be directed. He made no request for instructions and made no argument to the jury. The district attorney did not argue for a verdict of guilty but argued for a verdict of not guilty by reason of insanity. That verdict was returned. See G. L. (Ter. Ed.) c. 123, § 101.

The case comes before us upon appeal in accordance with the procedure established by St. 1925, c. 279, as amended by St. 1926, c. 329, now embodied in G. L. (Ter. Ed.) c. 278, §§ 33A–33G. The defendant took exceptions and filed assignments of error. Only questions of law thus presented are before this court for consideration. Commonwealth v. McDonald, 264 Mass. 324, 336, 162 N. E. 401.

There was no error in the admission of testimony as to the confession and admissions made by the defendant. It rightly has not been contended that this narration by the defendant of his connection with the crime with which he was charged in the indictment was not freely made, without compulsion, fear of harm or hope of leniency. No inducements were held out to him to make it. Commonwealth v. Szczepanek, 235 Mass. 411, 414, 126 N. E. 847;Commonwealth v. Soaris, 275 Mass. 291, 298, 175 N. E. 491.

This testimony was not rendered inadmissible by the mental condition of the defendant. The medical evidence falls far short of proving that the mental infirmities of the...