316 Mass. 489 | Mass. | 1944
The defendant, Beatrice Bouvier, was indicted on February 17, 1943, for the murder of her husband, Rudolph N. Bouvier, on December 8, 1942. She was found guilty of manslaughter by the jury. The case comes before us on her appeal with assignments of error. G. L. (Ter. Ed.) c. 278, §§ 33A-33G, as amended.
The verdict of the jury makes it unnecessary, in view of the result we reach, to consider the defendant’s assignments of error numbered 54 and 55 based upon the refusal of the judge to direct a verdict of not guilty of murder in the first and second degree. The consideration of the defendant’s assignment of error based upon the denial of her motion for a directed verdict of not guilty of manslaughter will dispose of the case.
At the trial of the present case it was undisputed that the deceased husband of the defendant was killed instantaneously as the result of a gunshot wound inflicted as he lay asleep in his room in the house occupied by him and his wife and children, at about 2:45 a.m., and that the gun (a twelve gauge single barreled shotgun) was in the hand or hands of the defendant when discharged with the result just stated.
The testimony of the defendant would have warranted the jury in finding the following facts: On Sunday morning, December 6, 1942, the deceased went on a hunting trip with some friends. The day before he took his single barreled shotgun from the hallway in the first floor of the Bouvier house, where he usually kept it, after breaking it to see that it was not loaded. He brought it upstairs to his bedroom for the purpose of cleaning it, informing the defendant that
There was evidence that the bedroom of the deceased was located in the rear of the house on the southeast corner of the second floor and that it was directly over the bedroom of the defendant. His bedroom was to the left of the head of a staircase. The door leading to his bedroom was located in the northerly wall in the northwest corner. It swung inward and to the left. A double bed was placed parallel to the south and north walls and the head of the bed was against the westerly wall between the bedroom and a bathroom just beyond. The distance from the left side of the bed to the door was three feet six inches. The bed was four feet six inches wide. The room itself was about thirteen by ten feet in dimensions. The defendant’s version of the shooting disclosed by her testimony, which was in accordance with what she ultimately told the police before the trial, was substantially as follows: The deceased returned from the hunting trip on Monday, December 7, at about 7:30 p.m. He talked with the defendant and his children. He had left the double barreled gun, which he had borrowed, on the porch and at his request one of his sons brought it into the house. The deceased "looked through” the gun as was his custom and left it in the-first floor hall. The defendant offered to prepare supper for him, but he said "never mind. I know that you are not feeling good, and I will go down street.” (The defendant was an expectant mother at the
There was evidence that when discovered after the shooting the body of the deceased was lying in bed with his head lying on its right side on the northerly pillow facing south and that there was a wound in his left temple; that this was the entrance wound; that the pellets traversed the head leaving a large open wound on the right side; that the shot was a contact shot; that the gun was held at an angle slightly less than vertical from the level of the bed when discharged; and that four “pellets” were found in the pillow directly beneath the head of the deceased. There was also evidence that during the day of December 8 the defendant went to the police station at Ware and stated that she did not know how the deceased had been killed but that she
The decisive question is whether the jury could have found properly on the evidence that the defendant was guilty of involuntary manslaughter by reason of wanton or reckless conduct on her part resulting in the death of the deceased. It is unnecessary to discuss that type of manslaughter denominated as voluntary, since in the present case there was no evidence that the defendant killed the deceased in “a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon a sudden combat.” Commonwealth v. Soaris, 275 Mass. 291, 299, and cases cited.
It is settled in cases of homicide that one who wantonly or recklessly does an act that results in the death of a human being is guilty of manslaughter although he did not contemplate such a result. Commonwealth v. Thompson, 6 Mass. 134, 141. Commonwealth v. Pierce, 138 Mass. 165, 180, and cases cited. Commonwealth v. Hawkins, 157 Mass. 551, 553. Commonwealth v. Arone, 265 Mass. 128. United States v. Freeman, 4 Mason, 505. Story v. United States, 16 Fed. (2d) 342, 344. State v. Pond, 125 Maine, 453. This is so although the killing is not the consequence of an act that is unlawful for independent reasons apart from its likelihood to kill, since one may commit manslaughter by doing otherwise lawful acts recklessly. Commonwealth v. Pierce, 138 Mass. 165, 175. See also Commonwealth v. Guillemette, 243 Mass. 346, 347. And it has been held that a person who handles a dangerous weapon in such a manner as to make the killing or physical injury of another a natural and probable result of such conduct can be found guilty of involuntary manslaughter, although he did not contemplate such a result. Commonwealth v. Hawkins, 157 Mass.
Whether the conduct of the defendant which resulted in the killing was wanton or reckless must be determined upon her own testimony. On that testimony we think that it could not have been found properly that the discharge of the gun was other than accidental. The defendant’s motion that the judge direct the jury to return a verdict of not guilty of manslaughter should have been granted.
Judgment reversed.
Verdict set aside.
Case remanded to the Superior Court.