The defendant was found guilty in the first degree of the murder of his sister’s eight year old daughter, Theresa Lafleur, in Fall River on the evening of August 4, 1947. The case comes here on his appeal, with an assignment of seven еrrors and a transcript of the evidence.
The girl was missed, and her father learned that she had gone to walk with the defendant. With a friend, one Lima, the father searched for the defendant and the girl with an аutomobile. They finally found the defendant, who said that he had left the girl at the junction of two streets, whence she intended to go to his brother’s house. Later he admitted that he had killed the girl. The father then notifiеd the Fall River police, who searched for the body of the girl during the night, and found it early in the morning of August 5, on Tom Mix’s hill, in rough country.
The defendant testified, and did not deny the killing. He testified that he grabbed the girl by the throat. He testified that he told the police where to find the body, close to a big rock. In his argument, counsel for the defendant argued in favor of a conviction of murder in the second degree.
A medical expert, who examinеd the body, testified that the girl had died from strangulation and injury to her
The first error assigned is the denial by the judge of the defendant’s motion to engage medical experts for him. It appeared that the defendant was intemperate, had been arrested for drunkenness, and had been drinking to excess shortly before the crime. The two physicians who examined him under G. L. (Ter. Ed.) c. 123, § 100A, reported that he is neither feebleminded nor insane, but has a psychopathic personality. We assume that the judge could have granted the motion under G. L. (Ter. Ed.) c. 277, § 56. But the matter was discretionary. Nothing in the medical report and nothing in the record indicated that the defendant was not mentally responsible. We find no error in the denial of the motion. Commonwealth v. Belenski,
The second error assigned is the admission in evidence of certain admissions and a confession made by the defendant. Sergeant Patry of the Fall River police testified in substance as follows. The defendant said he walked from Theresa’s house with her to Fourth Street where he gave her twenty-five cents and told her to go to his brother’s house. But later the defendant told Sergeant Patry that he killed her, and that her body was at Tom Mix’s hill. The defendant said, “I don’t want to get beaten up,” and the sergeant answered, “We don’t operate that way,” and told him he had nothing to fear. The defendant said that he took Theresa’s “panties” off. He said he grabbed her by the throat and choked her. He said he had torn her clothes and ripped her pants off and inserted his finger in her vagina and had done damage there, in order to mаke it appear to be a sex crime and to divert suspicion from himself. The defendant accompanied the police in the search for the body, and told them where to find it. He said he held thе girl on the ground with one hand while he hit her in the face with the other. He said that before he met Theresa
About noon on August 5, 1947, the defendant signed a written confession after reading it, and after being told that he need make no statement except of his own will. In his written confession he said thаt he took Theresa to walk into the woods at Tom Mix’s hill, and there choked her, took her clothes off, hit her in the face several times, and forced his finger into her. He denied any sexual intercoursе with her. In the process he got blood on his collar from her mouth. He said he killed Theresa for revenge against her father, and that he formed the purpose to kill her when he saw her playing at her hоuse.
Prima facie, a confession is voluntary and admissible. Commonwealth v. Congdon,
The third assignment of error was to the admission in evidence of photographs of the dead body of the girl, which showed her whole body, and not merely the head and neck' to which was applied the force that caused death. The defendant’s contention is that the sight of photographs showing the private parts of the girl, which had been torn and were covered with blood, would inflame the minds of the jury against the defendant. A similar contention has often been made in homicide cases, but it has never been sustained where the photographs had evidential value upon a material matter. Commonwealth v. Retkovitz,
The fourth assignment of error was to the admission in evidence of the testimony of a medical expert, who examined the body, that the рresence of a pubic hair of an adult and of spermatozoa in the blood in and near the vagina was consistent with her having been raped before the Mlling. The defendant contends that the еvidence did not warrant a finding that she was raped while still alive. We think the evidence of the medical expert was competent. He testified that the large amount of blood that flowed from the vagina indicated that the girl was still living when her vagina was torn. The jury could find accordingly.
The fifth assignment of error is to the admission of an answer of a chemist who examined the trousers of the defendant for blood. The witness testified that there was a blood stain on the trousers one and one half inches to the right of the inside seam of the right leg and approximately eight inches below the crotch, and that he cut out the piece containing this stain. He was asked, “Was that spot . . . the nearest blood stain to the crotch?” He answered, “That was the nearest blood stain to the crotch which was of sufficient size fоr me to conduct an analysis upon.” The defendant did not move to strike out the answer, but noted an exception to its admission. “The proper practice where an irresponsive answer hаs been made is for the objecting party to move to have it stricken out for that reason, and if his motion is not granted to save an exception to the refusal.” Jacobs v. Cromwell,
The sixth assignment of error is to the refusal to instruct the jury that the Commonwealth had failed to show that the murder was committed with such extreme atrocity or cruelty as to make it murder in the first degree, and that no rape had been proved. The judge instructed the jury that there could be no extreme atrocity or cruelty in acts committed upon a dead body, and that there could be no rape upon a dead body.
Unquestionably there was evidence of murder with deliberately premeditated malice aforethought. And we think there was evidence of murder committed in the course of a rape. But the judge submitted to the jury also the questian of murder committed with extreme atrocity or cruelty, and the general verdict of .guilty in the first degree may have been based upon such extreme atrocity or cruelty. G. L. (Ter. Ed.) c. 265, § 1. Those words mean that the means used were "extreme as compared with ordinary means of producing death.” Commonwealth v. Devlin,
The defendant asks us to review the whole evidence in accordance with G. L. (Ter. Ed.) c. 278, § 33E (St. 1939, c. 341), аnd to order a new trial on the ground that the verdict was against the law or the weight of the evidence or that for other reason justice requires a new trial. Commonwealth v. Gricus,
Judgment affirmed.