180 Mass. 492 | Mass. | 1902
This is an indictment for murder upon which the defendant has been found guilty of murder in the first degree. The case is here on exceptions. The first exception is to the overruling of a motion to quash the panel because the clerk in issuing the venires did not “ require from each town and city a number of jurors as nearly as may be in proportion to their respective number of inhabitants,” as required by Pub. Sts. c. 170, §11. Commonwealth v. Walsh, 124 Mass. 32, 37. The object of this enactment is not to benefit the prisoner, but is expressly stated to be to “ equalize as far as possible the duty of serving as jurors.” The exception might, perhaps, be disposed of on the ground that the section, gives the prisoner no rights, or, when no prejudice is shown, is merely directory as to him. See Friery v. People, 2 Keyes, 424, 452, 453; Forsythe v. Ohio, 6 Ohio, 19, 21; Evans v. State, 109 Ala. 11. But it is unnecessary to consider that answer, because, as was decided in a trial for murder in this court, when there is no ground for suspecting misconduct or partiality, the true construction of the statute is not “ such as to require that proportion to be observed in every particular occasion when a jury is to be summoned. That, indeed, is practically impossible. The statute relates equally to civil cases and to criminal cases. In many counties of this Commonwealth the number of towns is much in excess of the number of jurors that are ordinarily required, and it would be impossible to observe it in each particular case with accuracy and with literality. But the intention of the statute, as it seems to us, is to give general directions to the clerks in issuing the venires for jurors, that they shall be so apportioned, taking one term of the court with another, with reference to the population of the towns, that the duty of serving on juries shall be equalized as far as possible.” Allen, J., Trial of Henry K. Goodwin, 6, 7. This construction of the statute cuts, the root of the defendant’s argument. See, further, State v. Moore, 69 N. H. 102.
Bailey, the person alleged to have been murdered, was last
An exception was taken to testimony of the defendant’s brother-in-law as to some incriminating conversation of the defendant. It now is argued that the communication was privileged because made to an agent of the defendant’s lawyer. As to this it is enough to say, without considering other questions, that it does not appear that the witness was acting as an agent, or that the communication was made to him in the belief that he was an agent, or in confidence other than reliance upon the witness’s personal friendship.
The government contended that Bailey was shot with a Winchester rifle that was in the kitchen. Two bullets were found in his body, and the government was allowed to prove that another bullet of the same calibre had been pushed through the rifle on or shortly after October 24. It then was allowed to put this bullet in evidence, and also photographs from this and the two bullets from the body, in order to show that the marks from the rifle in the two cases coincided so closely as to prove that all three bullets had passed through the same rifle barrel. This evidence was excepted to. The main ground seems to be that the conditions of the experiment did not correspond accurately with those of the date of the shooting, that the forces impelling the different bullets were different in kind, that the rifle barrel might be supposed to have rusted more in the little more than a fortnight that had intervened, and that it was fired three times on October 10, which would have increased the leading of the barrel. We see no other way in which the jury could have learned so intelligently how that gun barrel would have marked a lead bullet fired through it, a question of much importance to the case. Mot only was it the best evidence
With reference to the bullets found in the body an expert was allowed to testify that they were marked by rust in the same way that they would have been if they had been fired through the rifle found at the farm, and that it took at least several months for the rust that he saw in the rifle to form. It is objected that these were not matters for expert testimony. We see no reason to doubt that the testimony was properly admitted.
After giving the weight of the bullets found in the body, a witness was allowed to give the weight of bullets given up by the defendant at the farm. This obviously was a link in the chain of proof, and needs no special remark.
The last exception argued is to the refusal of the court to rule that there was no evidence warranting a verdict of guilty of murder in the first degree. It is argued somewhat as if the question were whether there was any evidence of murder at all. A sufficient answer is a very brief summary. There was evidence, as we have stated, —■ with the weight of it we have nothing to do, — that Bailey went home to the farm after he last was seen alive. Some one shot him, probably between nine and ten that night, and probably with the rifle at the farm. The defendant was there alone. Bailey’s body was cut up, therefore he probably was killed by some one who had opportunity for deliberate action. There was some evidence of ill feeling towards Bailey on the defendant’s part, as well as of a possible motive in the way of money. The defendant told the whereabouts of a watch which Bailey always wore when alive, and seemingly had concealed it with some money where it was' found. He also gave false reasons for Bailey’s disappearance. There was some evidence that Bailey’s wagon was driven from the farm, as we have stated, between ten and eleven, to the pond in Lynn. The jury were fully warranted in finding that the defendant killed Bailey. We cannot say that they were not warranted in finding that
Exceptions overruled.