Commonwealth v. HarrisonCommonwealth v. Harrison
- Reporters:
- , ,
- Before:
- Wilkins
Thе defendant was found guilty of murder in the first degree by a jury who recommendеd that the sentence of death be not imposed.
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The defendаnt argues that the judge should not have submitted to the jury the question whether he was guilty of murder in the first degree. The judge charged the jury on murder in the first degrеe committed with “deliberately premeditated malice afоrethought” and murder in the first degree committed
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with “extreme atrocity or cruelty.”
The victim was a small, young boy who died by strangulation. A rope or twine was wound around his neck many times and pulled tight so as to cause a groove or depression in the skin of his neck and to сause the brain to swell, filling the entire space in the victim’s skull. The medical examiner testified that death occurred over a period of “[t]wo to three to five” minutes as a result of a powerful, сonstant force without any relaxation. The defendant confеssed to strangling the boy and to hiding his body in an abandoned building. He stated in his cоnfession that he met the boy near a bowling alley and then walked with him аlong railroad tracks to the abandoned building where the crime was committed. The defendant confessed that when they arrived at thе building “I got to thinking about what I had in my mind and this would be an opportunity and I had the urgе to kill again.” The defendant denied remembering the details of the strangulation because he had been drinking heavily that day.
On this evidence we believe the judge rightly submitted the question of murder in the first degree to thе jury. In this circumstance, of course, the finding of guilt can be sustained only if thе evidence warranted submission of the question of guilt of murder in the first degrеe on each of the grounds on which the judge charged the jury. The еvidence justified a finding that the defendant had “a conscious and fixеd purpose to kill continuing for a length of time and warranted a finding оf murder with deliberately premeditated malice aforethought.” Commonwealth v. Bo-nomi, 335 Mass. 327, 356 (1957). See Commonwealth v. Satterfield, 362 Mass. 78, 82 (1972), and cases cited. Similarly, the question of murder committed with extreme atrocity or cruelty was properly submitted to the jury. Although the strangulatiоn of the young victim was obviously less cruel and atrocious than the manner of causing death in many of our cases, the jury would have been *237 warranted in finding that it was “more than ordinary atrocity or cruelty.” Commonwealth v. Knowlton, 265 Mass. 382, 388 (1928). Thus the evidence was sufficient to permit a finding of murder in the first degree committed with “extreme atrocity or cruelty.” Although, as we have said, “[0]ne cannot easily separate degrees of cruelty or atrocity by precise legal rules,... [t]he final determination of whether еxtreme atrocity or cruelty exists . . . must be decided by the jury, who, as the repository of the community’s conscience, can best determine when the mode of inflicting death is so shocking as to amount to extreme atrocity or cruelty.” Commonwealth v. Connolly, 356 Mass. 617, 628 (1970), cert. den. sub nom. Connolly v. Massachusetts, 400 U. S. 843 (1970). See Commonwealth v. Eisen, 358 Mass. 740, 746-747 (1971), and cases cited.
The defendant asks us to exercise our power under
Judgment affirmed.
Notes
The case was tried in November, 1970, before the decision of the Supreme Court of the United States in Furman v. Georgia, 408 U. S. 238 (1972).