174 Mass. 245 | Mass. | 1899
1. If the challenge to the array was in due form, and if an exception was taken to the decision overruling it, still, fairly construed, it does not allege on independent grounds that the law as to posting the jury list in the city of Boston was not complied with, but rather that the records set forth show that it was not, or do not show that it was. St. 1897, c. 515, § 2. We do not mean to give any countenance to the objection, but for the purposes of decision it is enough to say that, if it were well taken, it does not affect the whole panel, and therefore is not a ground of challenge to the array. Commonwealth v. Walsh, 124 Mass. 32, 38.
2. The second exception is to the refusal of the court to order a view of the place where the murder was committed and of the route along which the defendant Chance was alleged to have fled. It was expected that such a view would strengthen the argument for Chance that he was unable to run as the murderer ran.' On the other hand the view was objected to by the defendant Hagan. The whole matter rested in the discretion of the court. The language of the chapter as to criminal trials is that the court “ may order a view,” etc. Pub. Sts. c. 214, § 11. In the chapter concerning juries the language is, “ The jury may ... be taken to view the premises . . . when it appears to the court that such view is necessary to a just decision.” Pub. Sts. c. 170, § 43. The word “ may ” implies a discretion. Without such governance views might become rather an obstruction than an aid to justice, and we believe that when extended from their ancient use in real actions they always have been held to be subject to the discretion of the court both in this State and in England. Commonwealth v. Webster, 5 Cush. 295, 298, 299. The Queen v. Martin, L. R. 1 C. C. 378, 381. Anonymous, 6 Mod. 211. Anonymous, 1 Barnard. 144. Attorney General v. Green, 1 Price, 130. 1 Burr. 252, 254, 255. Anonymous, 2 Chitty, R. 422. This being so, although the view might have been evidence if it had been taken, photographs and plans found to be instructive properly were admitted.
3. A woman with whom Chance lived was called by the gov-
4. The defendant was arrested on April 20, 1898. On that day he had a conversation with an officer in which he gave a certain account of where he' was on the night of the murder, and admitted that he owned a coat found in the alleged path of the running murderer, and that he had it about the hour of the murder. On the morning of the next day the defendant was asked in the presence of several officers concerning his whereabouts, and gave a somewhat different account, and said that he went to bed about half-past eight or nine, whereas the testimony of the woman with whom he lived was that he was away from home after eight for a greater or less time. On the afternoon of that day the defendant was arraigned, and in the evening the same officers, with one exception, examined him at length with a stenographer. In the course of this last examination there was evidence, more or less contradicted, of certain words being used by an officer which the court found or ruled to be such an inducement as to render the portion of the examination which followed inadmissible. The court thereupon found or ruled that the previous part of the examination was so connected with the later part that none could be put in. The defendant then asked the court to go still further, and to rule that the two previous examinations were so connected with the last that they also should be excluded; but upon the court refusing so to rule, preferred to have the whole of the third examination go in, saving his exception to the refusal to exclude all three.
We do not see what we can say by way of argument to make
It is argued further that the conversations were not voluntary in view of the defendant’s confinement, recent recovery from a fit of delirium tremens, etc. We have no disposition to make the rule of exclusion stricter than it is under our decisions. It goes to the verge of good sense, at least. Regina v. Baldry, 2 Den. C. C. 430, 445, 446. Regina v. Reeve, 12 Cox C. C. 179, 180. Hopt v. People, 110 U. S. 574, 584. The finding that the conversations were voluntary was fully warranted. See Commonwealth v. Bond, 170 Mass. 41.
Finally, it is slightly pressed that the conversations had nothing in them tending to criminate the defendant, while it is insisted that he suffered by their being admitted. We believe that in stating the first two we have indicated sufficiently their relevancy.
5. It being important to prove whether the defendant shaved off his mustache before or after the murder, a witness was permitted to testify through an interpreter that he did not remember the time but that he had a sign, — that the night before there was a fight at Kasanof’s store, and the following morning the mustache was taken off. This was excepted to. Another witness then fixed the date of the fight at Kasanof’s store as the date of the murder. The evidence was admissible on elementary principles. McDonald v. Savoy, 110 Mass. 49, 50.
6. The government put in evidence that after the murder the defendant Chance was seen running rapidly from the place. A part of the evidence for the defence was that Chance, by reason
7. Evidence was offered by the defence and excluded, sub? ject to exception, that one Mrs. O’Brien, since dead, during a quarrel with her husband, went to a closet, took out two bullets and said, “ The third one killed Russell.” Seemingly it was argued that the evidence showed grounds for suspecting Mrs. O’Brien’s husband, and that her declaration was admissible under St. 1898, c. 535. The statute was met by the judges, who were not satisfied that the declaration was made in good faith and upon personal knowledge. It now is argued that the evidence was admissible as part of the res gestee. But it was no part of any material fact or act. Assuming that the presence
8. A witness testified that she had seen O’Brien wearing an overcoat like the one produced which belonged to Chance and was found in what was supposed to be the path of the murderer’s flight. The witness did not identify the coat or in any way fix the time when she saw O’Brien wearing one like it. She was asked what O’Brien said at the time. It does not appear what the answer was expected to be. We find it hard to imagine anything which would have been material and admissible. O’Brien was alive, so that the statute mentioned above did not apply. Presumably, what he said was mere hearsay. If it had been a confession, still the cases have held that the general rule against hearsay applies. Commonwealth v. Chabbock, 1 Mass. 144. Farrell v. Weitz, 160 Mass. 288. 6 Am. & Eng. Encyc. of Law, (2d ed.) 573, sub v. “ Confessions.” If anything admissible was expected it should have been shown. Honsucle v. Ruffin, 172 Mass. 420.
9. The defendant Chance seems to have presented an unreasonable number of requests for rulings. The thirty-seventh is brought before us. It was given in substance by the court, except that the court did not use the phrase “ abiding conviction amounting to a moral certainty,” as explanatory of the obligation of the government to prove its case beyond a reasonable doubt. This matter has been disposed of with what but for this case would seem almost superfluous amplitude in Commonwealth v. Costley, 118 Mass. 1, 23-25.
10. The last exceptions argued are to the refusal to give in terms the instructions asked with regard to the definition of
It is suggested that the instructions asked would have excluded the possibility of the jury’s finding that the offence was murder because committed in the attempt to commit an offence punishable with imprisonment for life, whereas, it is argued, the offence must be murder on other grounds, and then is raised by the supposed concomitant to murder in the first degree. Pub. Sts. c. 202, § 1. The applicability of this suggestion appears to
Exceptions overruled.