Commonwealth v. Derby

| Mass. | Mar 2, 1928

Braley, J.

The defendant’s motion for a directed verdict of not guilty and the request that upon all the evidence the defendant could not be found guilty of an assault with intent to commit rápe, were denied rightly. On the evidence of the prosecutrix the jury could find the following facts: On September 26, 1927, Florence I. Hogg, a single woman twenty years of age, came by train into the Greenwood Station in the town of Wakefield at about twenty-five minutes past six o’clock in the afternoon and left the station to walk to her home. As she walked she heard footsteps behind her and when she reached the end of a meadow that partially skirted the street, and while she was under a street light, the person in the rear came up and said, “Good evening . . . It is lovely weather we have been having, isn’t it,” to which she answered " Yes.” The man, who accosted her and whom she positively identified at the trial as the defendant, was by her side barely touching her hand or elbow. The prosecutrix started to walk faster and the defendant followed more rapidly, “lundged [lunged] right down on top” of the prosecutrix “and knocked . . . [her] down.” Her outcries attracted the attention of the residents of a neighboring house, and she felt that “he loosened up on me.” “I said, ‘Please let me go. I’ll give you my pocket book or anything’, and he says ‘Oh, I don’t want your pocket book,’” and released her. While the stockings of the prosecutrix were somewhat torn at the knee because of her contact with the ground, there was no evidence that her clothing had been displaced or disarranged. It is plain there Was evidence of an assault, and the criminal intent of the defendant was for the jury to determine in view of all the circumstances. Commonwealth v. Thompson, 116 Mass. 346" court="Mass." date_filed="1874-11-28" href="https://app.midpage.ai/document/commonwealth-v-thompson-6417886?utm_source=webapp" opinion_id="6417886">116 Mass. 346. Commonwealth v. Bemis, 242 Mass. 582" court="Mass." date_filed="1922-10-10" href="https://app.midpage.ai/document/commonwealth-v-bemis-6435944?utm_source=webapp" opinion_id="6435944">242 Mass. 582. We cannot say as matter of law that the evidence was so slight that it was the duty of the court to direct a verdict of not guilty. Commonwealth v. Hollis, 170 Mass. 433" court="Mass." date_filed="1898-02-28" href="https://app.midpage.ai/document/commonwealth-v-hollis-6426279?utm_source=webapp" opinion_id="6426279">170 Mass. 433, 436. The fifth assignment of error cannot be sustained.

The defendant on the day of the assault had spent the afternoon with two other men riding about the city of Lawrence in an automobile where he admitted that he drank liquor. A young woman, a friend of the family of one of the defendant’s companions, rode with them from Lawrence to Melrose where she left the party. The defendant alighted in Wakefield to walk to his home in Melrose, an adjoining town, and the automobile drove away. The prosecutrix in cross-examination testified that she was assaulted at twenty minutes before seven in the evening, while there was evidence that the automobile did not reach Wakefield until seven o’clock, and that notice of the assault was received at the police station at quarter before seven. The conflicting statements as to time in so far as material were for the jury. It was uncontradicted that on the morning of the day after the assault the defendant, a journeyman plumber, went to his work wearing the same clothes that he wore the day before. A police officer went to the house where the defendant was at work and asked him to go to the police station where he told the officers of his trip to Lawrence on the previous day, and gave the names of his male companions. It appeared in evidence that previously a police officer had asked the defendant where he had obtained intoxicating liquor to which the defendant replied at “Bouchet’s.” But upon being asked at the station where Bouchet lived he denied ever having been there, and when asked why he had at first denied that a woman had accompanied the party from Lawrence to Wakefield, the defendant stated that he did not want her involved in the affair. The defendant, who had not been arrested, assented to being placed at the station in a fine with other men for identification by the prosecutrix, but she said nothing at the confrontation that was audible to the defendant. The prosecutrix however testified in response to questions by the Commonwealth as to how many times she had seen the defendant and when the next time was after the assault replied, “When I went in and picked him out as the man.” The defendant moved that this answer be stricken out, and the first assignment of error is to the refusal of the motion. We perceive no error. The answer to the question was clearly responsive.

The jury could find that the defendant at first informed the police officers that no woman was in the party on the trip, but later admitted that a woman had been with them. A member of the party, one Donegan, a witness for the defendant, was asked in cross-examination by the Commonwealth, ‘‘ There wasn’t any reason why the defendant, Derby, should have desired to hide the names of the people that he was with, was there, that you know of ?” The answer was “No,” and the admission of this question subject to the defendant’s exception is the second assignment of error. But the extent of the cross-examination was within the sound discretion of the judge, which does not appear to have been abused. Commonwealth v. Sacco, 255 Mass. 369" court="Mass." date_filed="1926-05-12" href="https://app.midpage.ai/document/commonwealth-v-sacco-6437481?utm_source=webapp" opinion_id="6437481">255 Mass. 369.

The third error alleged is that the Commonwealth was also permitted to ask the defendant in cross-examination if he knew of any animus, prejudice or bias as a reason why the prosecutrix should desire to injure him. The question did not call for the opinion of the witness, but whether he knew of any reason why he should have been accused. It was admissible for reasons just stated.

As to the fourth assignment of error, a police officer called by the Commonwealth was allowed to testify that the prosecutrix said at the time of confrontation of the four men at the station where the defendant stood first in the line, “It’s Number 1. It is not the other three.” It did not appear that the defendant could hear this statement. As proof of identification it was inadmissible. Commonwealth v. James, 99 Mass. 438" court="Mass." date_filed="1868-04-15" href="https://app.midpage.ai/document/commonwealth-v-james-6415374?utm_source=webapp" opinion_id="6415374">99 Mass. 438. But one Urquhart, a witness for the defendant and one of the men who stood in the line, in answer to questions of defendant’s counsel testified that the prosecutrix in his presence as a spectator said to the police officer at the time of the confrontation and referring to the identification of the defendant, “I don’t,” or “I can’t say,” or “I am not positive.” The judge correctly ruled that in rebuttal of the evidence of this witness the officer could be asked what the prosecutrix did say in the conversation described. The evidence was not admitted in corroboration of the testimony of the prosecutrix but in contradiction of the material statements of a witness for the defendant.

The sixth, seventh, eighth and ninth assignments are to the refusal of the defendant’s fourth, fifth, sixth and seventh requests for rulings. In substance the judge was asked to instruct the jury that they could consider the conduct of the defendant after the time of the assault to ascertain if such conduct justified an inference of consciousness of guilt, or whether his conduct was that of a man unconscious of having committed .the crime charged; that, before evidence of acts indicating consciousness of guilt could be considered, the law required that there must be a causal connection or some probative relation between such evidence and the crime charged; and that the evidence relied on by the Commonwealth as indicating consciousness of guilt was to be considered against the defendant only if it was consistent with consciousness of guilt by the defendant that he committed the crime charged, and was inconsistent with any other theory. If the jury found that the defendant’s statements to the police, that he had been to Bouehet’s house, and that there was no woman in the automobile party, were false, it was for the jury to decide whether these statements were made to protect himself from suspicion or prosecution because of guilt or whether they were made to shield some of his companions from publicity. Commonwealth v. Sacco, supra. The instructions of the judge as to the sufficiency, degree of proof, weight and effect of evidence tending to show consciousness of guilt sufficiently covered the requests and protected the defendant’s rights. Commonwealth v. Sacco, supra. The entry must be

Exceptions overruled.

Judgment affirmed.