The evidence in this case, including a con
In his confession, the defendant stated that when he procured this insurance he intended to "do away with someone” and "collect the insurance,” and that he “got the insurance for that purpose.” On April 5, 1935, the defendant bought for $1,508 an automobile of a 1934 model, which was paid for with $175 in cash, two old automobiles, and a note for $1,141.25, payable in sixty days. On April 15, 1935, the defendant bought an automobile of a less expensive make and of a 1929 model, for $100, paying $50 in cash and giving а note for $50. Both automobiles were registered in the name of the defendant, the former on April 8, 1935, and the latter on April 15, 1935.
On the evening of May 6, 1935, the defendant, driving his less expensive automobile, went into Boston, and at the Common invited a man, who had been drinking intoxicating liquor and whom he did not know, to take a ride. The unknown man got in, and they drove to the neighborhood of Hudson. There the defendant struck the unknown man on the head with an iron bar, and either left him in the automobile or put him into the automobile. There, while the unknown man was still alive though probably uncon-
The defendant and Anthony were indicted together on May 8, 1935, for the murder on May 6, 1935, of "one John Doe, whose true name and a more particular description of whom is to said Jurors unknown.” Anthony had been questioned by the police on the day before. A warrant issued for the defendant on May 8, 1935, and he was taken into custody in Boston at about one o’clock in the afternoon. Afterwards, at about three o’clock in the afternoon of that day, the defendant was questioned in the office of the district attorney at Cambridge, and made a confession of the crime. On May 9, 1935, the defendant was arraigned at Cambridge, and entered a plea of not guilty.
Later the district attorney came into possession of ample evidence, which need not be recited, that the man, unknown at the time of the indictment, who was killed, was one Daniel Crowley, who had lived in a lodging house on Green Street in Boston, had once worked for the New York, New Haven and Hartford Railroad Company, and had last been seen on May 6, 1935. On October 17, 1935, the district attorney, on behalf of the Commonwealth, moved to amend the indictment by striking оut the reference to the fictitious John Doe and by inserting, as the name of the person murdered, "one Daniel Crowley.” This motion to amend was allowed, subject to the exception of the de
The defendant and Anthony were tried together for the murder of Daniel Crowley. At the conclusion of the evidence, a directed verdict of not guilty was returned in favor of Anthony. The defendant testified, but he neither admitted nor denied the killing. As is said in the defendant’s brief, "The principal defence of the defendant, Frank Di Stasio, was that he was insane and out of his mind at the time through drink and never had any knowledge of the acts with which hé was charged.” The case against the defendant was submitted to the jury, and a verdict of guilty of murder in the first degree was returned. The case comes hеre by appeal, with a summary of the record, a transcript of the evidence, and an assignment of errors, under G. L. (Ter. Ed.) c. 278, §§ 33A-33G. Commonwealth v. McDonald,
1. The amendment of the indictment is assigned as error. By G. L. (Ter. Ed.) c. 277, § 35A, "Upon motion of the district attorney or prosecuting officer, the court may order the complaint or indictment amended in relation to allegations or particulars as to which the defendant would not be prejudiced in his defence.” In Commonwealth v. Cooper,
Although the indictment in the present case did not as returned by the grand jury name or describe the man who had been murdered, except by a fictitious name (see Commonwealth v. Crotty,
The general validity of an indictment for murder in the statutory form was settled by Commonwealth v. Jordan,
2. There were other pending indictments against the defendant and Anthony arising out of the same occurrence. One charged the defendant alone with murder. Another charged Anthony as accessory before the fact. A third charged both with conspiracy to defraud an insurance company. It is assigned as error that the judge put them to trial on the indictment charging both with murder, without putting them to trial on the other indictments. The asserted right to be tried on all the indictments at once finds no support in Commonwealth v. Slavski,
The defendant suggests that if Anthony had been tried at the same time for some lesser offence as well as for murder, the direction of a verdict in favor of Anthony upon the indictment for murder would have left it possible to convict him of a lesser offence, and would not have made it necessary for the jury to convict the defendant if they were determined to convict someone. This is pure speculation. It might equally well be argued that if the jury wished to convict Anthony, and were deprived of the opportunity by the action of the judge, the chances of a
3. G. L. (Ter. Ed.) c. 234, § 28, provides that “Upon motion of either party, the court shall, or the parties or their attorneys may under the direction of the court, examine on oath a person who is called as a juror therein, to learn whether he is related to either party or has any interest in the case, or has expressed or formed an opinion, or is sensible of any bias or prejudice, therein; and the objecting party may introduce other competent evidence in support of the objection. If the court finds that the juror does not stand indifferent in the case, another shall be called in his stead.” By G. L. (Ter. Ed.) c. 278, § 3, “A person whose opinions are such as to preclude him from finding a defendant guilty of a crime punishable with death shall not serve as a juror on the trial of an indictment for such crime.”
In this Commonwealth the examination of prospective jurors is “under the direction of the court,” whether conducted by counsel, or, as is customary, by the judge. Seldom is it permitted to extend beyond the statutory questions. Commonwealth v. Cero,
This salutary practice cannot be evaded by the simple expedient, adopted by the defendant in the case at bar, of filing a written challenge “to the array” on the ground that the prospective jurors had been deprived of impartiality by contact with police officers, and then offering to prove by an examination of the jurors themselves, though not by any other evidence, the existence of the disqualification alleged. If that were permitted, we should have, as the trial judge said, an “intolerable practice” of putting the prospective jurors on trial before the trial of an indictment begins. Similar attempts by defendants in capital cases, to insist upon examining jurors in an attempt to prove an impairment of impartiality resulting from interrogation by police officers, proved unsuccessful in Commonwealth v. Cero,
Questions asked prospective jurors by the judge disclosed that some, but not all, of them had been approached by a police officer and asked to give information needed for the report. Every prospective juror who testified that he had been so approached testified that he had not thereby been intimidated or influenced. As was said in Commonwealth v. Cero,
The mere pоssibility that a prospective juror thus interrogated may have become disqualified, does not give a party a constitutional right, by asserting such disqualification, to examine the prospective juror in the endeavor, to prove the assertion, beyond the limits set by G. L. (Ter. Ed.) c. 234, § 28. There is no constitutional right to introduce all evidence that may be logically relevant upon an issue raised. Considerations of social policy and practical expediency long agо produced a number of rules excluding from consideration facts which logically have some probative force. The policy and expediency of limiting the examination of prospective jurors to that provided for by our statute, is obvious.
The defendant now argues that even though the examination of the jurors was properly restricted to the statutory questions and such others as the judge in his discretion might permit, the defendant was entitled to have those questions рut by his counsel rather than by the judge. This point is not well taken. The judge has the option, either to ask the statutory questions himself, or to permit the parties or their attorneys to do so. The practice has been for the judge to undertake the examination. Commonwealth v. Gee,
4. The defendant assigns as error the admission in evidence of a photograph of the body of the deceased, and of the left femur taken from the body. The latter was admitted for its tendency to show by a partly healed break in the bone, that the deceased was Daniel Crowley, who had suffered a broken left femur so recently that the bone
5. One Myerson, an expert in mental disease, was employed by the department of mental diseases, as requirеd by G. L. (Ter. Ed.) c. 123, § 100A, to examine the defendant “with a view to determine his mental condition and the existence of any mental disease or defect which would affect his criminal responsibility.” The department is required to “file a report of its investigation with the clerk of the court in which the trial is to be held, and the report shall be accessible to the court, the probation officer thereof, the district attorney and to the attorney for the accused.” A physician making such an examination is paid $4, together with twenty cents for each mile travelled one way. § 73. In Commonwealth v. Devereaux,
The defendant contends that Myerson, having examined the defendant under the statute, was not a competent witness for the Commonwealth on the issue of insanity when raised at the trial. He stood in no confidential relation towards the defendant. The possibility that his report in favor of criminal responsibility might be challenged and that he might then be called as a witness by the Commonwealth does not in our opinion create such a bias as to interfere with the impartiality desired in his examination. In Commonwealth v. Millen,
There is nothing in the contention that by the examination the defendant was “ compelled to . . . furnish evidence
6. It is true that when .the defendant was arrested on the warrant, it was the duty of the arresting officers to bring him without delаy before the court. Tubbs v. Tukey,
7. A few questions and answers in the defendant’s confession as taken stenographically related only to the question whether Anthony discussed with the defendant the confessed intention of the lаtter to kill someone for the purpose of defrauding the insurers. They did not qualify or explain any questions and answers relative to the conduct of the defendant himself. If admitted in evidence without limitation they would have been assertions of the defendant, not under oath, tending to inculpate Anthony. Often in trials of several persons it is impracticable to withhold from the jury any part of a confession or admission of one defendant which involves a statement as to the misconduct of another. In such a case the proper and usual course is to let the jury hear all, and trust them to obey the instruction of the court not to give weight to the confession or admission against any defendant other than the one making it. Commonwealth v. Millen,
The defendant now argues that he was prejudiced by the omission of these questions and answers because if read to the jury they could have been made the foundation of an argument that only a man who did not appreciate right from wrong would have made statements inculpating a dearly beloved son. But at the trial no such point was clearly made. Counsel for the defendant insisted that thе whole confession be read to the jury “for the purpose of the jury drawing their own conclusions ... as to the method in which the confession was obtained, and ... as to the mental condition of the defendant, as appears from the confession itself, in answer to questions propounded to him.” When the judge said that the part which he
8. The defendant assigns as error the refusal of the judge to instruct the jury that “the defendant cannot be convicted on his alleged confession or admission only.” There was other evidence which supplemented and corroborated the confession, and the request violated the familiar rule that a judge cannot be required to rule upon the legal effect of a fragment of the evidence, taken by itself. Barnes v. Berkshire Street Railway,
9. After testifying that in the burned automobile there was found an unburned notebook, the writing in which he was able to read, a lieutenant of police was allowed to testify that he caused the contents of the notebook to be published in the newspapers, and in consequence of the finding and publication he interviewed persons at the New York, New Haven and Hartford freight sheds, examined records there, and went to the lodging house on Green
10. Evidence that the business done by the defendant at his store had lessened, and that his pecuniary condition was not good, had a logical tendency to show a motive for crime. The case was not one in which an inference from his pecuniary condition was relied on as the means by which he might be selected among several as the person who probably committed the crime. In such a case the danger of injustice to a poor or distressed person may well halt the marshalling against him of even logical inferences. In this case the evidence in question was no more than a makeweight, as to a matter upon which the confession and circumstances furnished ample proof. The Commonwealth, as in Commonwealth v. Cooper,
11. The denial of the motion for a new trial was not error. As was said in Commonwealth v. Osman,
There are other assignments of error, not already discussed, which have been argued either merely by reference to the assignments themselves, or not at all. All have been considered. But we think there is nothing in them to justify further extending this opinion.
Judgment on the verdict.