Commonwealth v. Mercier, 257 Mass. 353

Commonwealth v. Mercier

257 Mass. 353 | Mass. | 1926

Sanderson, J.

The defendant was charged with the murder of his wife by causing her to take deadly poison, and was convicted of murder in the second degree.

The defendant excepted to the order of the court that a recess of two weeks be taken, based on motion of the district attorney made on the day set for trial, after the list of jurors had been called but before any of them had been examined. The reason for the motion, as stated by the district attorney, was, that he had not been able to obtain the attendance of an officer who was a material witness and who was away on important business. The defendant’s ground of exception is that Common Law Rule 24 of the Superior Court (1923) relating to postponement requires an affidavit in support of a motion to postpone a case based upon the absence of a material witness. But it is expressly provided that the rule shall not prevent the court in any case from granting a postponement in its discretion for cause shown. This exception must be overruled.

The defendant excepted to the refusal of the court to order the Commonwealth to specify in response to a motion for particulars the name of the deadly poison relied on as a cause of death. “At the common law, though it was necessary to allege the kind of poison administered, nevertheless proof of the use of a different kind of poison was regarded as an immaterial variance.” It is murder if the defendant “unlawfully and feloniously administered any poison with the design of taking life, and that which he so administered did produce death.” Westmoreland v. United States, 155 U. S. 545, 549. An allegation that need not be proved is not an *365essential part of the indictment and without a specification of the poison administered the crime is fully, substantially and formally set out. G. L. c. 277, § 40. See Commonwealth v. Morrison, 16 Gray, 224; Commonwealth v. McCarthy, 145 Mass. 575, 576; Commonwealth v. Sinclair, 195 Mass. 100, 106. The refusal of this part of the motion was discretionary with the court.

The defendant also excepted to the statement by the trial judge to the jury that what they would see on the view would be competent evidence for them to consider. This was combined with a statement that the view must be conducted in accordance with the oath administered to the officers, under which they were permitted to view the premises, together with any marks or objects thereon or relating thereto which might be pointed out by counsel named in the oath. No objection was made, so far as appears, to anything which took place on the view. There was no error in the statement of the judge as to the right of the jury to consideras evidence what was seen by them on the view. See McMahon v. Lynn & Boston Railroad, 191 Mass. 295, 298; Commonwealth v. Dascalakis, 246 Mass. 12, 29.

The ruling of the judge, that the district attorney might in his opening state the substance of conversations with the defendant in the district attorney’s presence which would be proved by witnesses to be called, was free from error.

Exceptions were taken to the admission in evidence of two bottles containing embalming fluid obtained from the embalmer. No exception was saved to the testimony of the chemist as to the analysis of their contents. The embalmer did not swear positively that the bottles given to the chemist for analysis and their contents were the identical ones used in embalming the body of the deceased; but he did say that the liquid in the bottles was not all used in embalming the body; that the bottles, if not the same, were similar to those containing the fluids used; that they came from the same case of twenty-four bottles labelled and marked exactly the same; that they were bought at one time of one concern, for embalming; that they contained samples of red and white fluid used in embalming and that “It was the same fluid, that *366is, the same formula.” This was sufficient to justify the admission in evidence of the bottles and their contents. See Commonwealth v. Hobbs, 140 Mass. 443, 446. The chemist, called later by the defendant testified, in substance that, from his reading and study, all embalming fluids are the same thing.

The defendant has argued exceptions to the exclusion of three questions asked in cross-examination of the witness John L. Sullivan, chief of police of Pittsfield: (1) whether there were some material additions to the testimony as given by him in the District Court; (2) what he had said on the stand that he did not say in the District Court; and (3) whether he testified in the District Court that the defendant told him he had deserted his wife. There is no merit in the contention that the first and second of these questions should have been admitted. It appeared that the stenographer’s transcript of the evidence in the District Court was m the hands of counsel for the defendant as he was examining the witness, and the question whether the witness had testified to desertion was asked after a lengthy cross-examination respecting his testimony in the District Court, in the course of which the witness had said that there were many things said to him by the defendant in a conversation lasting several hours which were omitted from his testimony in that court; that many questions were asked by counsel in that court and that he did not then go into details as he had done at the trial. There was no offer to show whether the witness spoke about the defendant’s desertion in the other court, although the stenographer was called to testify to what other witnesses said, and there is nothing to show that anything said in that court as to desertion was in any respect different from the testimony of the witness at the trial in the Superior Court. The length and limits of the cross-examination of the witness on this subject were largely in the discretion of the court. See Squier v. Barnes, 193 Mass. 21, 23. In Commonwealth v. Homer, 235 Mass. 526, 532, the testimony of the witness before the grand jury was offered in evidence. In Commonwealth v. Perry, 254 Mass. 520, 526, the question in cross-examination of a wit*367ness whether he had told the grand jury anything about a certain matter to which he testified at'the trial was excluded. This court said "Nothing appears to show that any testimony given by him at that time contradicted the testimony which he had given in this trial. The limit of cross-examinatian was within the discretion of the presiding judge. We cannot say that it was abused, or that the defendant has been prejudiced.” See also Commonwealth v. Sacco, 255 Mass. 369, 439; Commonwealth v. McDermott, 255 Mass. 575, 580. The defendant’s exception to these rulings by the trial judge must be overruled.

There was evidence tending to prove that the defendant worked in a bakery in Pittsfield from October 15, 1923, until December 15,1923, when he was discharged. Shortly before Christmas he went to Lawrence and remained several days. He stated to the chief of police that at this time he took his wife and family with him, but he later said to the chief that he went alone. There was evidence that on the Friday before Mrs. Mercier died the defendant stated to one of the witnesses in substance that he had one girl in Pittsfield and that when he was in Lawrence there was a woman with whom he was intimate while her husband worked nights. The jury could find that the defendant in this conversation was referring to the time when he was in Lawrence shortly before Christmas, as well as to the time when he was there for several weeks in the spring of 1923. His brother-in-law, who lived in Lawrence, was permitted to testify subject to the defendant’s exception that the defendant told him at the time of this Christmas visit that he came after booze, that he made a few cents on it and wanted to make a few cents more; that he wanted to make money in booze. It was in the same conversation that he said that everything was going better; that his folks gave him all his furniture and that he had brought a coat for the witness’s sister. We cannot say that the fact, that at this time, when the defendant was out of work and his father and others were supporting or helping to support his wife and children, the defendant, instead of remaining with them or looking for work either at home or elsewhere, went to Lawrence to spend some days on the mis*368sion, as he himself said, of buying liquor to sell, was wholly irrelevant. While standing alone, if it be assumed that the defendant truthfully stated the object of his visit, the evidence might throw little light on his attitude and feelings toward his wife, yet we cannot say that it was entirely without probative value with the other evidence in the case on the issue of motive. Moreover, the real object of his trip to Lawrence may have been to visit the woman there to whom he had referred, and the explanation of his visit made to his wife’s brother in connection with his statement of the encouraging conditions at home may have been made to conceal from bis wife’s family his real purpose in going to Lawrence. The evidence also could be found to have a tendency to disprove his first statement to the chief of police that he took his family to Lawrence with him at the time. In conducting an inquiry to prove that a husband had a motive for killing his wife much must be left to the discretion of the trial judge. It is not necessary that each piece of evidence to be admissible should be sufficient to prove the motive. It is enough if it has some probative value. Commonwealth v. Howard, 205 Mass. 128. Commonwealth v. Russ, 232 Mass. 58, 72. If evidence material to prove an issue in the case discloses the defendant’s participation in another crime, it does not for that reason become incompetent. Commonwealth v. Madeiros, 255 Mass. 304, 314. In so far as the evidence tended to prove another crime the defendant’s rights were protected by the part of the charge in which the trial judge said that the fact that a person has committed a crime is not evidence that he has committed any other crime. The exceptions to the admission of this testimony of the defendant’s brother-in-law are overruled.

The defendant excepted to the evidence that saws, such as might be used in cutting prison bars, were found sewed into his trousers when a search of his prison cell was made. It is contended that such evidence ought not to be admitted in the absence of evidence of an attempt to use the saws. The defendant’s own statement, that he received the saws while in prison and sewed them into his clothing fearing that if they were found people might think he was trying to escape, *369made this evidence competent as tending to show consciousness of guilt. See Commonwealth v. Wallace, 123 Mass. 400; Commonwealth v. Madeiros, supra. It was for the jury to say from the whole evidence whether they would believe the defendant’s explanation of the manner in which the saws came into his possession and his purpose in continuing to keep them, or whether they would find that he had the saws to use in effecting an escape if opportunity presented itself. The competency of the evidence does not depend upon proof of an overt act such as would be required to prove the crime of attempting to escape. The exceptions to the admission of this evidence, to the reference to the saws made by the district attorney in his opening and by the judge in his charge, are overruled.

After the defendant in cross-examination had directed the attention of the witnesses Dr. Boos, a toxicologist, and Mrs. Sacco to answers made by them in the District Court, it was proper for the trial judge to allow the district attorney in rebuttal to put in all that the witnesses said in the District Court on the subject to which the defendant’s questions were directed and to clear up any erroneous impression which might be made on the jury by the questions or the form in which they were phrased. In so far as any material testimony was then introduced by the district attorney’s questions, it was within the judge’s discretion to admit such evidence at that time. See Commonwealth v. Williams, 244 Mass. 515, 521.

Exceptions to questions of the district attorney on the ground that they were leading must be overruled.

Two questions to the chemical expert, to which objection was made on the further ground that they involved disputed questions of fact, were: “Have you any question that the poison that killed this woman was cyanide of potassium?”' and “Is there any question in your mind but that hydrocyanic acid was the cause of her death, in this case?”

It is apparent from the whole examination of the witness that he was intending to testify to the cause of death of the person whose stomach he examined and that he did not intend to give testimony to the effect that the stomach which *370he examined was that of the woman for whose death the defendant was being tried, and it does not seem likely that the jury could have understood the questions and answers in any other sense. But if it be assumed that there is ground for the contention that, on the evidence the question whether the witness examined the stomach of the defendant’s wife was in dispute, and if it be assumed that the two questions asked were objectionable in form, all ground for the objection was cured by the question asked of the witness by the defendant in recross-examination in answer to which the doctor said, in substance, that the way he wanted to leave the matter was that, assuming that the stomach examined by him came from the body of Eugenie Mercier, then in his opinion she died from the effect of a cyanide and hydrocyanic acid.

The defendant excepted to the refusal by the trial judge to strike out certain answers and parts of answers as irresponsive.

In cross-examination of the medical examiner, the defendant’s counsel asked: “So far as the story was given to you of this woman’s death on Wednesday, February 13, it might ■ have been a case of apoplexy?” and the witness answered: “It might, but I don’t believe it was.” The defendant’s motion to strike out the last part of the answer was denied. The witness had testified in direct examination that in his opinion death was caused by some poison in the stomach; and, in cross-examination, that apoplexy is a cause of sudden death; and he had described the nature and symptoms of apoplexy. After the defendant had saved this exception, the witness in response to questions by the defendant’s counsel gave his reasons for believing that apoplexy was not the cause of death. He also gave further reasons for this opinion in redirect examination. The first question asked called for the opinion of a medical witness, and it may well be that a part of the answer would not fairly state his opinion in answer to the question. The ruling refusing to strike out part of the answer was one which might rightly have been made in the discretion of the trial judge. The fact testified to in the answer was a competent fact to be proved and in a broad sense the answer was responsive.

*371The motion to strike out the answer of Dr. Boos to the question “Which cyanide?” was properly denied. The whole answer could not have been struck out. It was in part directly responsive to the question. If the defendant intended to object to a part of the answer he should have designated the part.

The same witness, having testified in cross-examination that his reason for testing a certain embalming fluid for cyanide was because some of it would touch the outside wall of the stomach, was asked by the defendant’s counsel: “Might some of the results of the fluid touching the outside of the stomach wall produce a positive test for cyanide?” His answer was “Yes, and there was none present.” The motion to strike out the “latter part,” of the answer was denied. The presiding judge may have thought that the whole answer w;as permissible to prevent a misunderstanding of the opinion of the witness. The part of the answer objected to was a competent fact and in the nature of a repetition of what the witness had previously testified to, and we cannot say that it was an abuse of discretion for the trial judge to allow the whole answer to stand.

Exceptions were also taken to questions asked in cross-examination of the defendant.

The first of these was to the question, whether at one of the dances at the Casino any officer told him he had better stop dancing and go home and take care of his wife and children, and he answered he didn’t remember such a thing. In reply to a question relating to his acquaintance with the police, he stated that he knew some of them but there was nothing wrong. When asked if a police officer helped him on the corner of the street one evening when a crowd was chasing him, he said he guessed" he did, that he did not know what the crowd were chasing him for; and to the question whether he had been chasing a woman there and the mob got after him, he said “No.” Before any of these questions were asked, the defendant had testified without objection that he had never had any trouble with the police. ‘ ' In the practical administration of justice, the presiding judge, especially in a criminal case, must be given a broad discretion as to the ex*372tent and scope of legitimate cross-examination.” Commonwealth v. Kaplan, 238 Mass. 250, 255. Commonwealth v. Sacco, supra. “Where the inquiry relates to the relations between husband and wife the details may be somewhat minute. Standing alone, single incidents of slight significance may in connection with all the others have a bearing upon the existence of a feeling of hostility or other elements of motive.” Commonwealth v. Russ, supra. Commonwealth v. Howard, supra, pages 148, 149.

In so far as the witness made denials of the matters asked about, there was no evidence against him. See Commonwealth v. Devereaux, 256 Mass. 387, 396. In so far as the questions were framed to test the accuracy of his previous testimony, there is no valid objection to them. In so far as they sought to show that he was neglectful of his wife or indifferent toward her and that he was attentive to other women, and in so far as they tended to contradict his testimony, they were admissible in the discretion of the trial judge.

The exception to the question, “To whom except Officer Bligh, since your arrest, have you ever stated that you told your wife about this poison in the house? ” must be overruled. The defendant answered that he had told his counsel and his father and mother. If he had answered that he had told no one since his arrest, he would have been entitled to a ruling that his failure to make a statement when under arrest could not be considered against him. Commonwealth v. Goldberg, 212 Mass. 88, 91. It does not appear that any request for a ruling on this matter was made. The defendant cannot complain of the introduction by the Commonwealth of evidence favorable to himself.

The ruling excluding evidence of the witness Frissell, that he kept cyanide of potassium in a closet in his house, was right.

When the defendant’s mother was called to testify, it had appeared that both of the defendant’s parents were living in Pittsfield during the years that the defendant and his wife had lived there. The defendant had introduced evidence tending to show that the relations between himself and wife had *373been cordial during their married life. It had appeared that the defendant had left his wife and family in Pittsfield in April, 1923, and gone to Lawrence; that in June, 1923, his wife and four small children came to Lawrence and his wife went to work in a mill; that within a few days of her arrival he left Lawrence, and, with the possible exception of one visit, he did not see his family again until after they returned to Pittsfield in September, 1923; that in the meantime he had been in Springfield, Pittsfield, and Rochester, New York, where he was when he heard that his wife was back in Pitts-field. The defendant testified that when he was in Rochester his wife and folks knew where he was. It was the contention of the Commonwealth that the defendant had been neglecting his wife and children; that he deserted them when he went to Lawrence and also when he left them after they arrived in Lawrence; and that he desired to be rid of his wife and of the responsibility for the care of her and the children. It had appeared in evidence that during the year 1923, he had been criminally intimate with a woman in Pittsfield for whom he had bought clothing and a ring. He fixed the date when the ring was purchased as about six months before his wife’s death, or about August, 1923, and it could have been found that he had promised to marry the woman if she got into trouble. There was also the evidence of his relations with a married woman in Lawrence. The defendant’s purpose in leaving his family in Pittsfield and going to Lawrence and again leaving them in Lawrence came to be a material inquiry and as incidental to this all the circumstances under which he left came to be material. The defendant’s mother testified in direct examination to seeing the defendant’s family daily during most of the time when they were living in Pittsfield; that her son went to Lawrence to work and five there; that his wife always wanted him to go to Lawrence where her brother Philip and her parents were; that he was away from Pittsfield at that time about three weeks or a month; that he came back to Pittsfield to work after his wife had gone to Lawrence; that then he went to Rochester and she knew he was going. She also described in some detail that the defendant’s wife at the time of her *374death had a considerable amount of clothing and that up to a month before her death she was cheerful. She testified without objection, in cross-examination, that while her daughter-in-law was in Lawrence there was no time when she did not know where her son was; that there was no time when he left his wife or her that the witness did not know where he was.

In this state of the evidence we cannot say that the trial judge went beyond the limits of judicial discretion in admitting the letters written by the witness, under his ruling that they were not evidence of any facts stated in them, but were admitted solely as bearing upon the credibility of the witness. These letters were all written by the witness, one, dated May -10, to her son when he was in Lawrence, and three, dated respectively August 28, September 4, and September 10, to her son’s wife while she was with her children in Lawrence. If it be assumed that the letters contradicted the witness on collateral matters, still the extent to which a witness may be contradicted on such matters is largely in the discretion of the trial court. Bennett v. Susser, 191 Mass. 329, 330. Commonwealth v. Russ, supra, pages 80, 81.

But some of the matters concerning which the letters tended to contradict the witness were not wholly collateral. The defendant had testified that he had written his mother asking her not to have his wife and children come to Lawrence, and if his mother’s letter is read in the light of that fact it could be found that notwithstanding the son’s opposition she was insisting on the wife and children going to Lawrence to join the husband and father. This letter tended to weaken the impression left by the testimony of the witness that her son went to Lawrence to work and to live in order to carry out the wishes of his wife. The letter of August 28 contradicted the witness by reason of its tendency to prove that although the defendant went away from her house, he went in the night and she did not know where he had gone; and the letter of September 4 was admissible for its tendency to show that she did not then know where her son was. The letter of September 10 shows that the witness did not then know where the defendant was and the jury *375could have found that he went at about this time to Rochester, and that the letter had a tendency to contradict her testimony that she knew when he went to Rochester. As at least a part of each letter was competent, the ruling admitting them must stand. The objection was made to the letters as a whole, and there was no request to exclude a portion of them. The motion made to strike out the letters of August 28 and September 4, when the defendant’s former employer testified in rebuttal that the defendant was working in a bakery in Pittsfield on those two dates, was properly denied. The testimony of the defendant as to his relations with a woman in Pittsfield and to giving her a ring at a time which could be found to be about August, 1923, suggests that he might have had a reason for not letting his mother know where he was at about the time when some of these letters were written even if he were in Pittsfield; and it is also possible that the jury may not have believed the evidence that he was then working in that city.

The witness’ testimony that when the defendant left his wife and children in Lawrence he said he brought liquor from Lawrence to sell, and that she knew that he then brought liquor from Lawrence, would be irrelevant except for its tendency to throw light on the defendant’s relations to his wife and the circumstances connected with his leaving her in Lawrence. For the reason stated in considering similar testimony from another witness, we cannot say that the trial judge in admitting the evidence went beyond the limits of judicial discretion. All exceptions to the evidence of Mrs. Mercier must be overruled.

The question, whether certain evidence offered in rebuttal should have been introduced before the defence opened, was a matter largely in. the discretion of the trial judge, and we cannot say that there was an abuse of discretion in any of the rulings admitting such evidence.

The officer to whom the mittimus for the defendant was issued, instead of taking him directly to the jail, took him to different places where certain evidence was obtained which was used at the trial. The defendant objected to all evidence obtained in this way. But if it be assumed that the *376officer had no right under his mittimus to take the defendant to these places, still evidence thus obtained if otherwise admissible was competent. Commonwealth v. Welch, 163 Mass. 372. Commonwealth v. Wilkins, 243 Mass. 356, 361.

The motions for a directed verdict were properly denied. There was sufficient evidence to justify the jury in finding that the defendant intended to cause the death of his wife by poison which he had procured and that her death was thus caused by him. The evidence presented purely an issue of fact for the jury and the case was left to them under instructions which protected the defendant’s rights.

The district attorney in his closing argument referred to a part of the argument of counsel for the defendant as insincere and false, stating that it was “false because this man is guilty, and because I believe that that man that addressed you knows it as well as I do.” This part of the district attorney’s address went beyond the bounds of legitimate argument. But the judge at once, upon objection being made, said: “No, I don’t think that’s proper, Mr. Wright.” The court adjourned before the argument of the district attorney closed. The defendant at the opening of court the next day moved that a mistrial be declared because of the improper and prejudicial statement concerning counsel for the defendant, referring to the part of his argument quoted above. Mr. Wright then said that he had intended to withdraw that statement. The judge denied the defendant’s motion subject to the defendant’s exception. Mr. Wright then stated to the jury that he withdrew the statement that he made the night before with reference to Mr. Stevens, and what may or may not be his belief in this case; that he did it because his client, the Commonwealth, desires that in this or any other trial any man concerned with it shall be treated with complete and exact justice; and that applies to counsel as well as to the defendant. “He may believe — he has a right to as his counsel — the lying stories this defendant has told him.” The judge then said: “I don’t think that is proper, Mr. Wright, what Mr. Stevens may believe one way or the other.” The defendant renewed his motion for a mistrial, which was again denied subject to the defendant’s exception. The *377district attorney then said that he was not there to make any argument on what the mental attitude of counsel may or may not be toward the case. We are of opinion that in view of all that was said the rights of the defendant were not prejudiced by the unjustifiable reference to the belief of counsel in his guilt, but that they were safeguarded by the withdrawal of the remarks and the rulings of the trial judge. See Commonwealth v. Dies, 248 Mass. 482, 487.

The defendant also excepted to an uncompleted sentence of the district attorney’s argument in which he started to base an argument upon the contents of the letters of the defendant’s mother as though they were in the case for a broader purpose than merely to affect the credibility of the witness. When counsel objected the district attorney said he withdrew it, and when the judge was asked to rule he said “It is withdrawn. What more can you do?” This exception must be overruled.

Counsel for the defendant also objected to the language used by the district attorney, as he was closing his argument, but we are of opinion that taken in its entirety this part of his address was an argument for obedience to law and for the settlement of issues in court by true verdicts of juries and that it was within the limits of what is permissible in argument. The defendant did not point out to the trial court any specific objections to this part of the argument and did not ask to have the jury instructed in regard to it. See Commonwealth v. Cabot, 241 Mass. 131, 151.

Most of the requests for rulings have been disposed of by what has been said. The trial judge, having admitted evidence of statements by the defendant’s wife which might be interpreted to mean that she intended to commit suicide and having ruled that the Commonwealth must prove beyond a reasonable doubt that she did not commit suicide was not obliged to give in terms the instruction requested concerning those statements.

The requests concerning the defendant’s conversations with the police were sufficiently covered by the charge.

The requests relating to the defendant’s false and deceptive explanations of the presence in the house of the bottle *378containing cyanide, and to the difference in the conduct of men when facing death or distress, present no question of law. The matters therein referred to were wholly for the jury.

The request that if the relations between the defendant and the woman in Pittsfield had been permanently broken off three or four weeks before his wife’s death, then their previous relationship should be disregarded on the question of motive, was properly denied. The judge was not required to comment on this portion of the evidence, and it might well be that although the relationship had been ended under the circumstances disclosed by the evidence, the defendant might hope to renew it when his wife could no longer interfere with a marriage. The judge fully instructed the jury to disregard the evidence concerning this woman except in so far as it might or might not have a bearing on motive.

The judge instructed the jury, subject to the defendant’s exception, that they had a right if they saw fit to disregard the medical evidence in the case and come to such conclusions as they thought the remaining evidence warranted. It seems unnecessary to give extended consideration to this issue in a case where there was considerable medical testimony, much of which related to matters apparently not seriously disputed, but if this part of the instruction should be construed to mean that the judge ruled in effect that evidence outside the medical evidence would justify the jury in reaching a verdict of guilty, there was no error. If there had been no medical evidence in the case the jury could have found all of the essential elements of the offence established by the other evidence.

The exception to the order denying the motion for a new trial must be overruled. This was a matter within the discretion of the court.

All questions argued have been considered.

Exceptions overruled.