Commonwealth v. Madeiros
151 N.E. 297
Mass.
1926
Check Treatment
Rugg, C.J.

The defendant and three others were in-dieted jointly for murder. One of the other three has not been apprehended: the cases of two have been disposed of, and the defendant alone was tried.

The judge, on the motion of the Commonwealth acquiesced in by the defendant, ordered that the jury take a view of the premises where the murder was alleged to have been committed. The prosecuting officer, prior to the view, in his opening, stated that the defendant and his companions in the attempt to rob the Wrentham Bank stole a new Hudson touring car and on the day of the homicide came to the bank in Wrentham in the car, left one of their number sitting in the car at a place on the street described by him and indicated on a chart shown to the jury, while the defendant and the *313other two entered the bank, where the cashier was alleged to have been murdered by the defendant, and the three returned to the automobile and made their escape. The jury were then taken to the scene of the crime in Wrentham, where the automobile, alleged to have been used by the defendant and his companions in the commission of the crime, had been placed at the point described in the opening. Confessedly this was without the knowledge of the prosecuting officer, at whose request the automobile was removed before anything was said or done to draw the attention of the jury at the view to the automobile or its position, although it was plainly in the sight of the jury. Later the place was pointed out to the jury. On the return of the jury to the court room, the defendant asked the judge to declare a mistrial and to discharge the jury on account of this incident. This request was denied and the trial judge in appropriate words straightway instructed the jury to disregard the whole matter of the automobile, if they saw it, or its alleged position, and in that respect to heed only the testimony presented under oath before them. In all this there was no error of law. It is to be presumed that the jury followed the instructions. There is no ground for argument that the defendant suffered harm. Commonwealth v. Dascalakis, 246 Mass. 12, 29.

The defendant after his arrest was taken to Dedham jail, where was confined Bedard, one of those jointly indicted with the defendant for this crime. Bedard had made a statement to an officer impheating himself and the defendant in the commission of the crime. He repeated this statement in the presence of the defendant. At its conclusion the defendant called him an insulting name and said, “I would like to kill you.” This was admissible in evidence. When a defendant while under arrest is charged with a crime by an accusation made in his presence, and makes an equivocal reply or one susceptible of being interpreted as an admission or one not likely to be made by an innocent man, the question or statement and the answer or comment are admissible. Commonwealth v. Spiropoulos, 208 Mass. 71, 74, Common*314wealth v. Gangi, 243 Mass. 341, 345. Rex v. Christie, [1914] A. C. 545, 564, 565.

There was no error in the admission in evidence of statements made by the defendant to the district attorney and an officer shortly after his arrest, wherein he gave a false name and made other assertions which were untrue. Commonwealth v. Trefethen, 157 Mass. 180, 199. Commonwealth vSherman, 234 Mass. 7, 12.

The confessions of the defendant made in substance on two different occasions were rightly admitted in evidence. There was nothing to indicate that they were not voluntary. The officer asked the defendant on one occasion if he did not want to tell the truth about the shooting, and on the other gave him adequate warning and explanation of the statement asked for, and on neither occasion were threats used or promises of reward offered or any other improper inducement held out. The statements had every appearance of being free and voluntary. The charge to the jury correctly stated the law respecting confessions and the use to be made of them. All this was in conformity to the settled practice. Commonwealth v. Morey, 1 Gray, 461. Commonwealth v. Russ, 232 Mass. 58, 69. Commonwealth v. Festo, 251 Mass. 275, 280. Commonwealth v. Preece, 140 Mass. 276, 277.

Testimony that during his confinement before trial the defendant sawed the bars of his cell, assaulted the guard and attempted escape, was admissible as tending to show consciousness of guilt. Commonwealth v. Brigham, 147 Mass. 414. Although not shown on the record, it was agreed at the argument that the defendant was at the time under two separate indictments, one for murder and one for putting persons in fear for the purpose of stealing from a bank. These circumstances did not render this evidence inadmissible. Its weight was for the jury.

The admission of this testimony was not error merely because it tended to show the commission of another crime, provided it had probative force with respect to the crime charged. Commonwealth v. Johnson, 199 Mass. 55, 59. Commonwealth v. Feci, 235 Mass. 562, 567.

*315The portion of the charge to the effect that when a defendant by some act done in the commission or attempted commission of some crime of the degree of felony causes the death of a human being, the killing is with malice aforethought and is murder, was correct. It was sufficiently amplified. It was in accordance with the principles set forth in Commonwealth v. Chance, 174 Mass. 245, 252. Commonwealth v. Pemberton, 118 Mass. 36, 43. Commonwealth v. Pentz, 247 Mass. 500, 508.

There was no error in the charge to the effect that homicide committed in an attempt to commit robbery, G. L. c. 265, § 17, or the crime described in G. L. c. 265, § 21, was murder in the first degree. All that was said in that respect was in accordance with G. L. c. 265, § 1, which defines murder in the first degree as “Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life.” Commonwealth v. Pemberton, 118 Mass. 36, 42. Commonwealth v. Chance, 174 Mass. 245, 252, 253.

The definition of malice in connection with murder was in accordance with the settled law of the Commonwealth. Commonwealth v. Bedrosian, 247 Mass. 573, 576, and cases there collected. Commonwealth v. Pierce, 138 Mass. 165, 178.

It was not necessary to show that all four named in the indictment participated in the crime. The defendant alone might be convicted although four were indicted jointly. Commonwealth v. Jencks, 138 Mass. 484, 488.

A ruling was seasonably requested to the effect that the defendant is presumed to be innocent. It is the established practice to give such instruction, which has the great weight of the authority of Chief Justice Shaw. Commonwealth v. Kimball, 24 Pick. 366, 374. Commonwealth v. Williams, 6 Gray, 1, 4. Commonwealth v. Webster, 5 Cush. 295, 320. That practice has been recently reaffirmed in explicit language in three decisions where the point was expressly adjudged. It is imbedded in our law. Commonwealth v. Anderson, 245 Mass. 177, 190. Commonwealth v. DeFran*316cesco, 248 Mass. 9, 13, 14. Commonwealth v. Johnson, 250 Mass. 320, 323, 324. To the same effect see 4 Wigmore on Ev. (2nd ed.) § 2511, 1 Steph. Grim. Law, 397, 2 Russ. Crimes, (8th ed.) 1896. This presumption is not evidence. It does not run with the defendant through the trial and continue with him through all its stages. Requests of that naturc were denied rightly. The presumption of innocence may be defined briefly. “Nothing is required beyond a plain statement that the presumption of innocence means that the finding of an indictment by the grand jury or the record on an appeal on a complaint from a finding of guilty in a district court are not to be regarded as circumstances tending to criminate the defendant or creating against him unfavorable impressions, and that he is not to be found guilty upon suspicion or conjecture but only upon evidence produced in court.” 248 Mass, at page 13. Instructions of this nature were given in the case at bar. The jury were told that the fact that a person is in custody or is charged with crime by indictment is not even the slightest evidence of his guilt and is not to create any prejudice or unfavorable impression against him, and their decision is not to be based on suspicion or conjecture but only upon evidence heard at the trial. Instructions of the same general nature were also given in Commonwealth v. Anderson, 245 Mass. 177, and Commonwealth v. Johnson, 250 Mass. 320, but in each case it was held that the exceptions must be sustained because of refusal to give the instruction that at the outset of the trial the defendant was presumed to be innocent. The same result must follow in the case at bar. It is the only error disclosed on the record.

Exceptions sustained.