Commonwealth v. Caruso

| Mass. | Feb 24, 1925

Carroll, J.

The defendant was indicted for murder in the first degree of his wife, Marie Caruso, at Lawrence on July 2, 1922. The jury returned a verdict of “ Guilty of murder in the second degree.”

The defendant and his wife entered their home, where they lived together, about thirty minutes after ten o’clock on the night of July 1,1922. The defendant left his home the next morning about four o’clock, and a few minutes later, in company with his brother and a chauffeur, went by automobile to Salisbury Beach. Returning from the beach about one o’clock in the afternoon of July 2, he entered his home and there saw his wife, partly dressed, lying dead on the bed, with blood on her body and on the bed clothes. The Commonwealth contended that the defendant killed his wife at some time between thirty minutes after ten o’clock on the night of July 1 and four o’clock on the morning of July 2. The contention of the defendant was that, when he left his house on the morning of July 2, his wife was alive and bade him goodbye; and that he did not see her again until he found her dead.

There was evidence that numerous wounds were on the body of Mrs. Caruso, some of which were fatal, and several bruises, as well as nail marks and cuts on her face and neck; that a baseball bat belonging to the defendant was found in the house, “spotted with blood”; that it was sufficient to cause the injury found on Mrs. Caruso’s forehead; that a knife with human blood stains upon it was found in a container in the house; that some of the wounds could have been caused by this knife; that three “and possibly four” different weapons were used, and that “strong force was applied to the throat with the hand. ” The defendant and his wife occupied the same bed on the night of July 1. A jury could have found that no one else was in the house during the night; that after he left the tenement no one entered it until he returned. From the testimony showing the lividity, the temperature and stiffening of the body of the victim, it could have been found that she died on the morning of July 2, before the defendant left the home.

Mrs. Caruso was insured in the sum of $750, payable to the defendant. The title to the real estate where they lived stood in her name; she had $900 on deposit standing in the bank in her name. It appeared that at one time the defendant and his wife had trouble about the property; that she told him “I am the owner of the property — get out”; that he went to California but returned; that in September, 1918, the defendant brought a libel for divorce against his wife alleging cruel and abusive treatment; that there was no return of service on her and the libel was dismissed in October of that year; that at one time about two years and six months before the murder the defendant was heard to say to his wife during a dispute between them, “Sometime I will kill you” ; that on the inside of the door entering the defendant’s house there was a Yale lock and a large bolt underneath the lock. The defendant stated that his wife always bolted the door when he was out of the house; that on the morning of July 2, when he left the house, his wife was standing up and he asked her to go to bed; that she said “All right, I will go to bed when you go, I want to be sure that this door is locked” ; that “she got hold of the knob and shook the door.” He was asked how he opened his door on his return, and replied, “I take my key, I put it in the lock, I turned it, I opened the door.” It also appeared that at some time after the defendant entered the house gas was escaping from an open gas jet. It did not distinctly appear when this gas jet was opened. When the defendant discovered the body of his wife he was much disturbed, and was seen coming from the house “crying and pulling his hair.” In his statement to the police he said, “The gas got the best of me and I fell.” There was evidence tending to show that this statement was false, and the Commonwealth contended that his conduct after discovering the dead body was simulated, as was his apparently cheerful conduct during the day before the discovery was made. Without going further into the details, there was evidence to prove that the defendant’s wife was murdered by him, while in her home, when no one -but the victim and the defendant were present. It was for the jury to say whether the evidence convinced them of the defendant’s guilt. Commonwealth v. Best, 180 Mass. 492" court="Mass." date_filed="1902-02-27" href="https://app.midpage.ai/document/commonwealth-v-best-6427726?utm_source=webapp" opinion_id="6427726">180 Mass. 492, 497.

Dr. Dow, the medical examiner of the district, testified in the District Court; he died before the trial of the defendant in the Superior Court. The defendant objected to the stenographers reading their notes of Dr. Dow’s testimony at the former trial, on the ground that the notes did not contain all of his testimony and the testimony was given “on a different issue.” The trial judge found as a fact that all the testimony of Dr. Dow was taken by one or both of the stenographers; that it was accurately taken; that counsel for the defendant had an opportunity to cross-examine Dr. Dow and did cross-examine him at the former trial. The former testimony of Dr. Dow at the trial of the defendant in the District Court was upon the same issue and was substantially reproduced in all material particulars. It could have been found that all of his testimony was reported, and repeated at the trial, by one or both of the stenographers who took notes of his testimony. There was no error in admitting this testimony. The rule laid down in Commonwealth v. Richards, 18 Pick. 434, requiring that all the testimony of the deceased witness must be proved, was complied with. See Ibanez v. Winston, 222 Mass. 129" court="Mass." date_filed="1915-10-15" href="https://app.midpage.ai/document/ibanez-v-winston-6433288?utm_source=webapp" opinion_id="6433288">222 Mass. 129. Randall v. Peerless Motor Car Co. 212 Mass. 352" court="Mass." date_filed="1912-06-19" href="https://app.midpage.ai/document/randall-v-peerless-motor-car-co-6431903?utm_source=webapp" opinion_id="6431903">212 Mass. 352, 385.

As bearing on the question by whom the gas jet was opened and at what time, there was testimony by the appliance manager of the Lawrence Gas Company showing that' about ten cubic feet of gas an hour would pass through a two burner hot plate such as he found in the defendant’s house in December, 1922. The defendant excepted to this testimony. His exception was a general one. It does not appear that any change was made in the burner between the date of the murder and December, 1922; and it does not appear that the defendant excepted to the testimony on the ground that the conditions were not the same. There was evidence that the appliance manager was qualified to testify. The judge could properly admit this testimony. There was no error of law in admitting it. New York Central Railroad v. Freedman, 240 Mass. 200" court="Mass." date_filed="1921-11-26" href="https://app.midpage.ai/document/new-york-central-railroad-v-freedman-6435637?utm_source=webapp" opinion_id="6435637">240 Mass. 200, 210.

The evidence tending to show motive on the part of the defendant was properly admitted. Commonwealth v. Feci, 235 Mass. 562" court="Mass." date_filed="1920-05-18" href="https://app.midpage.ai/document/commonwealth-v-feci-6435129?utm_source=webapp" opinion_id="6435129">235 Mass. 562, 567, and cases cited. The defendant offered to show that there had been trouble between Mrs. Caruso and persons other than the defendant; that there was bad feeling between her and these third persons. This evidence was excluded. There was no evidence whatever connecting these persons with the murder. There was no error in the exclusion of this evidence. See Commonwealth v. Trefethen, 157 Mass. 180" court="Mass." date_filed="1892-10-19" href="https://app.midpage.ai/document/commonwealth-v-trefethen-6424310?utm_source=webapp" opinion_id="6424310">157 Mass. 180, 191, Commonwealth v. Abbott, 130 Mass. 472" court="Mass." date_filed="1881-02-24" href="https://app.midpage.ai/document/commonwealth-v-abbott-6420263?utm_source=webapp" opinion_id="6420263">130 Mass. 472,475.

The defendant called as a witness one Rosario Zappala who testified in substance that Mrs. Caruso was alive at eight o’clock in the morning of July 2. The Commonwealth introduced testimony tending to show that he was convicted of the unlawful keeping for sale of intoxicating liquor, under the name of Alfio Zangri. Near the close of the trial the defence stated it desired to present at the opening of court the next morning evidence that Zappala and Zangri were different persons. The next morning the court ordered the jury to disregard all reference to Zappala being named in the record of conviction, and everything in regard to the record, and to disregard the record. It must be presumed that the jury followed this instruction. The testimony of Zappala was not impeached by the record introduced and subsequently withdrawn by the direction of the judge. The defendant was not prejudiced by this ruling. Clark v. Boston & Maine Railroad, 164 Mass. 434" court="Mass." date_filed="1895-10-18" href="https://app.midpage.ai/document/clark-v-boston--maine-railroad-6425390?utm_source=webapp" opinion_id="6425390">164 Mass. 434, 439. Troy v. Rudnick, 198 Mass. 563" court="Mass." date_filed="1908-05-20" href="https://app.midpage.ai/document/troy-v-rudnick-6430273?utm_source=webapp" opinion_id="6430273">198 Mass. 563, 569. Costello v. Crowell, 133 Mass. 352" court="Mass." date_filed="1882-09-07" href="https://app.midpage.ai/document/costello-v-crowell-6420688?utm_source=webapp" opinion_id="6420688">133 Mass. 352, 354, 355.

The judge was not bound to give the request of the defendant, “If the jury are left in doubt as to whether Maria Caruso was killed before or after the defendant left his home on the morning of July 2, 1922, they should return a verdict of ‘not guilty’ ” in these exact words. The charge of the judge was complete, accurate and impartial; it dealt with all the essential questions. Commonwealth v. Feci, 235 Mass. 562" court="Mass." date_filed="1920-05-18" href="https://app.midpage.ai/document/commonwealth-v-feci-6435129?utm_source=webapp" opinion_id="6435129">235 Mass. 562. Commonwealth v. Hughes, 183 Mass. 221" court="Mass." date_filed="1903-04-01" href="https://app.midpage.ai/document/commonwealth-v-hughes-6428174?utm_source=webapp" opinion_id="6428174">183 Mass. 221.

The remaining requests of the defendant had reference to the burden of proof. The jury were fully and correctly instructed on this question. The charge was fair and all the rights of the defendant were protected. The jury must have understood that they could not convict unless the Commonwealth proved the commission of the crime by the defendant beyond a reasonable, doubt. Commonwealth v. Costly, 118 Mass. 1" court="Mass." date_filed="1875-06-21" href="https://app.midpage.ai/document/commonwealth-v-costley-6418130?utm_source=webapp" opinion_id="6418130">118 Mass. 1, 24.

We have considered all the exceptions argued on the defendant’s brief. There was no error in the manner in which the trial was conducted. The rulings of the judge and his instructions to the jury were correct.

Exceptions overruled.