The defendant, a man of forty-four years, was convicted, in the first degree, of the murder of a girl eighteen years old, named Ethel Zuckerman, who was a clerk in a bakery shop. Her body was found in the shop about ten o’clock in the evening of December 20, 1933, with the face and head bruised, the jaws broken, and six knife wounds in the throat, in one of which the knife remained. There was evidence that the murderer stole $8 out of the money drawer at the time of the murder.
The first assignment of error attacks the action of the judge in permitting the district attorney in his opening to state that the defendant, when questioned by police officers on Decembеr 22, 1934, confessed that he killed the girl because of jealousy. The defendant excepted on the ground that the facts making the confession competent had not then been proved. As a general rule, сounsel is free to state in his opening anything that he expects to be able to prove by evidence. Commonwealth v. Howard,
The second assignment of error assails the admission of photographs of the body as it was found. They were competent, and were not rendered inadmissible by the possibility that they might еxcite an unreasoning prejudice against the defendant. There is nothing to show that they did so in fact. This point is fully covered by authority.
The fourth assignment of error relates to the action of the judge in permitting the district аttorney to argue that jurors ought to have as much courage as three women witnesses who gave testimony against the defendant although they were friendly with him. This argument was not improper. Both judge and counsel may properly impress upon the jury their duty to act with courage as well as impartiality. Commonwealth v. Brownell,
The remaining assignments of error relate to the defence of insanity. As to the third, the cross-examinations of witnesses for the Commоnwealth tended to show that the defence was to be a denial of the killing. Until after the Commonwealth had rested, no suggestion of insanity had been introduced into the case by assertion, question or answer, except that a police officer, in narrating his conversation with the defendant, testified that the defendant said that “he was getting medical treatment at the City Hospital, that his brain was affected” and “that his brain was not just as it should be.” This fell far short of evidence that he was insane to such a degree that he could not be convicted of crime (Commonwealth v. Stewart,
The defendant wаs called as a witness by his counsel. He answered many questions as to his life and work and habits. In direct examination he testified that he killed the girl with a knife. Soon afterwards he testified that he did not kill her, but that a cigarette givеn him by a police sergeant had made him confess to the officers that he did.
An expert in mental diseases, called by the defendant, testified, from an examination of the defendant and from hearing him testify, that the dеfendant is, and was at the time of the killing, a low-grade moron, with an intelligence quotient of fifty, afflicted with syphilis of the brain and spinal cord, mentally diseased, and “medically insane,” although able to distinguish between right and wrong “to a certain extent,” and able to appreciate the fact that, if convicted, he might die in the electric chair. Expert witnesses called by the Commonwealth testified from extended examinations thаt the defendant is, and was at the time of the killing, the victim of an arrested case of syphilis of the brain and spinal cord, legally responsible and able to distinguish right from wrong, although one of them qualified the last statement by adding “to a limited extent.”
The fifth assignment of error is to the failure of the judge to give the following requested instructions relating to the defence of insanity: “13. If the defendant was so defective mentally at the time of and as tо the alleged crime as to be unable to restrain himself from committing the crime alleged, even though he did know the difference between right and wrong, he cannot be found guilty of murder in the first degree. 14. If the defendant at thе time of the commission of the crime was not of sufficient mental capacity to have an evil motive or malice for the killing or to hold that motive in his mind for an appreciable length of time, then he is not guilty оf murder in the first degree. 15. If the defendant’s criminal responsibility was impaired at the time of the crime, he cannot be found guilty of murder in the first degree. 16. If the defendant’s criminal
In charging the jury, the judge said, not with perfect accuracy, that “between the medical view of insanity and the legal dеfinition of insanity there is a marked difference.” For the legal definition of mental responsibility for crime he read to the jury the first two paragraphs and also the fourth paragraph of the charge of Shaw, C.J., in Commonwealth v. Rogers,
The fourteenth request, that one who lacks mental capacity for “malice” (Commonwealth v. Chance,
The thirteenth request was intended to present the doсtrine of irresistible impulse, the doctrine that one capable of distinguishing between right and wrong cannot be convicted of crime if his act was the result of irresistible impulse produced by mental defect or diseаse. No instruction was required on this subject in this case where there was no evidence for the jury that the deed was in fact the result of such irresistible impulse. Carr v. State,
The sixth assignment of error relates to the refusal of the judge to instruct the jury that on all the evidence the defendant could not be found guilty of murder in the first degree. If this point was properly taken by a request without a motion (Rule 71 of the Superior Court [1932]), it cannot be sustained. The admissions and confessions of thе defendant, with other corroborative testimony, constituted ample evidence that he killed the girl. From the medical evidence recited it could be found that the defendant was mentally responsible. The jurоrs saw the defendant on the stand, and could form an opinion as to his mentality. Commonwealth v. Devereaux,
The seventh assignment of error was to the taking of the verdict. The argument is, that the fact that only nineteen minutes elapsed between the time when the jury left the court room and the time when they returned to give their verdict, showed that they did not give the evidence adequate consideration. The case had been tried fully, and the jury could not help receiving impressions as the case proceeded. Evidently they had little doubt as to the facts. It was not necessary to spend time in discussing what no one doubted.
Judgment on the verdict.