319 Mass. 495 | Mass. | 1946
On January 13, 1944, the defendant was indicted for the murder of his infant son, Lawrence S. Noxon, at Pittsfield, on September 22, 1943. The indictment is in two counts. The first count charges that on
The defendant’s contentions are these: “1. The evidence was as matter of law insufficient to warrant a jury of reasonable men in properly finding defendant guilty of any crime. 2. The action of the trial judge in denying defendant’s motions attacking the sufficiency of the indictment and of the particulars furnished constitutes prejudicial error.
We proceed to the consideration of the defendant’s first contention based on assignments of error numbered 63, and 90 to 93, inclusive, to the effect that his motions for directed verdicts of not guilty should have been granted. These assignments of error were the first argued before us. It is necessary to deal only with his motions for directed verdicts of not guilty filed at the close of all the evidence. See Meeney v. Doyle, 276 Mass. 218, 221.
A recital at this point of certain undisputed facts is appropriate. The defendant was a practising attorney in Pitts-field where he was born on October 8, 1896. While he was an undergraduate at college in 1917 he enlisted in the armed service of the United States, was commissioned a lieutenant in the infantry, served at the front, was gassed, and was confined for several months in a military hospital abroad. Returning to this country, he resumed his studies at college. Completing his academic course, he was preparing to enter a law school when stricken with infantile paralysis which completely incapacitated him for a year. Upon his recovery he began and completed the study of law, and was admitted to the bar of this Commonwealth in July, 1924. As a result of infantile paralysis he lost the use of his left leg completely except by wearing a heavy steel brace from hip to
There was evidence as follows: Dr. George P. Hunt, a specialist in the care of children, called as a witness by the Commonwealth and conceded by the defendant to be eminently qualified as a pediatrician, who practised as such in Pittsfield for many years, testified in. part as follows: After the birth of the baby (on March 26, 1943) he was called to attend him about April 20 at the home of the defendant. The appearance of the baby was peculiar, of the Mongoloid type, indicated by “slant-like eyes, the outer corner of the eye being elevated higher than the inner corner of the eye; [by] a flat, stubby, pudgy nose, [and by] a slight tendency to thick lips and tongue.” At the time of that visit the doctor found the heart of the baby normal, and the motion of his joints appeared normal. When the baby was about two and one half to three months old, the baby’s mother and Dr. Hunt questioned “whether the baby could see.” Certain tests were made which demonstrated that he could see but could not retain a constant focus.
We continue with the recital, in substance, of further testimony of Dr. Hunt. On September 22, 1943, Dr. Hunt made a Schick test (at his office) on the baby’s right arm for diphtheria and injected whooping cough vaccine high up in the buttock. The Schick test was made first by
Dr. England testified in substance that having arrived at the defendant’s house and having been informed by Dr. Hunt that the baby had been examined by him at 4 p.m. that day and everything had been found "O. K.,” and that the baby was mentally deficient and of the Mongolian type, as verified by Dr. Smith, he talked with the defendant, who told him that he arrived home from his office at about four o’clock; that he was puttering with the radio; that Mrs. Noxon brought the baby in, placed him on a chair and went to the garden to pick corn; that he had to go to the garage to get "a pair of pliers and a screw driver”; that before going to the garage, he placed the baby on the floor because he was wet; that he went to the garage to get the tools; that he was gone three to five minutes; that when he returned he smelled something burning; that he looked and saw the wire of the' trouble cord looped around the baby’s left arm;
Dr. England saw some radio tubes in their cartons, he thought on a table at the west end of the room. He noticed a tray in the room but paid no particular attention to it. Nothing was said about it, and he saw no tools in the room. The radio which “apparently rested against the north end of the room” was at an angle of about forty-five degrees with the wall. Dr. England examined the trouble cord in the presence of the defendant and Dr. Hunt. He removed the plug from the receptacle at the north end of the room
On the following morning Dr. England telephoned to the defendant that he would like to go over the situation again. He arrived about 10 a.m. at the defendant’s house and the defendant started to tell him about the baby’s death in about the same terms as on the evening before, except that he said that, because the baby was wet, he placed him on the metal tray to save the rug, with his buttocks on the tray and his head and shoulders on a pillow. The defendant told him that he had destroyed the trouble cord and the baby’s diaper and shirt in the incinerator. Dr. England asked him a few questions about the cord, and he said that it was usually kept in the garage and was about two years old. Dr. England asked the defendant whether the ground wire was in contact with the tray. The defendant replied that he did not know. Leaving the defendant’s house, Dr. England met Chief of Police Sullivan and had some conver
On the morning of September 23, 1943, following the visit of Dr. England, John L. Sullivan, chief of the Pittsfield police department (hereinafter called Chief Sullivan), accompanied by Captain Marcel and Inspector McColgan of that department, went to the defendant’s house. The defendant invited them into the house and, upon being asked what had happened the day before, said that he had been trying a case that day, that of the Cornell-Dubilier Company against the Sprague Specialty Company, involving “secret processes on micro-condensers and capacitators, having to do with radio”; that he arrived at his home at about 3:30 p.m.; that Mrs. Noxon was not then at home, having taken the baby to Dr. Hunt’s office; that he had had some trouble with the radio and was-going to change the tubes; that the tubes that he had bought “last winter” were in the pantry; that he went to the garage and got a trouble cord that “he had taken down the Sunday before” and brought it into the book room; that he plugged it into the receptacle on the north side of the book room beneath the bay windows; that “it lighted”; that he “snapped” the light off, and left “it” lying on the floor; that he went to the pantry, got the tubes, six in number, placed them on a nickel tray, brought them into the book room, put them on the floor, and pulled the radio out at an angle so that he could “get at it”; that at that time Mrs. Noxon, who had returned, brought the baby in and placed him in a brown upholstered chair at the left of the radio, saying that she was going to the garden to pick some, corn; that shortly thereafter he (the defendant) decided that he wanted some tools; that he picked the baby up so that he would not fall; that he noted that the baby’s diaper was wet; that he placed him on the tray which was on the floor, placing a pillow under his head; that he “was gone” to the garage three or four minutes; that, upon returning and entering the book room, he smelled something burning and saw part of the wire (the trouble cord) on the baby’s chest and some of it around the baby’s left arm; that when he moved the radio out there was a black cord, a
Whittlesey testified in substance that he was vice-president of the Western Massachusetts Electric Company and president of the Berkshire County Savings Bank; that in the first week of September, 1943, he had a conversation with the defendant at the rooms of the bank for which the defendant had been counsel; that in the course of the conversation the defendant stated that he had read a newspaper account of a nearly fatal accident in a residence from the electrical service that is usually supplied to residences, and asked the fitness if he thought such a thing were possible; that he replied that he had heard of at least two other cases from sources that he thought were reliable; that he questioned whether the heart might not have been a contributing cause. The witness explained to the defendant the circumstances attendant upon those cases, stating that in one case the victim was repairing wiring in a basement while standing on a wet floor and came in contact with the wiring, and that in the other case the victim was in a bathroom and had one hand on a plumbing fixture and the other grasping a defective brass socket. The witness further testified that he told the defendant that the potential normally used in houses in Pittsfield was one hundred ten
On the morning of September 24 (Friday) the defendant and his wife were present at the police station. In answer to questions the defendant stated that when he returned to the book room and smelled something burning he grabbed the cord and “pulled it off”; that in pulling it off he noticed it was around the baby’s arm, because “it pulled the arm up as . . . [he] started to pull the cord on the body”; that he “gave the cord a couple of jerks, and it loosened up, and . . . [he] pulled it off”; that he then “shook the pillow a couple of times and got the whole thing off”; that he pulled the plug out of the socket and went to call Dr. Hunt; that the cord was around the baby’s arm “because his arm wouldn’t pull up when . . . [he] pulled the cord if it hadn’t been”; that he was “very sure it was wound around his arm” because he “had to jerk the cord in order to get it off his arm”; that the radio ground wire was on the floor, “just where . . . [he did not] know”; that he had not noticed the exposed parts of the trouble cord; that to the best of his recollection the trouble cord, the cage, the light and the “pile of wire” were at the right of the baby; and that the baby “could turn, but he couldn’t go all the way over.” At this point Mrs. Noxon stated that the baby would “hold a rattle . . . very tight” as if he was trying to shake it, that he could not shake it enough to make it rattle but he moved his arm the same way. With reference to the time at which the defendant had stated that he left the book room he said that “both of these wires” were on the baby’s right; that the only explanation
John F. Horgan, a State detective, testified in substance as follows: On the morning of September 27, 1943, he went to the defendant’s house with Captain Marcel, Lieutenant Whittemore, Inspector McColgan and Officer Naughton. Photographs were taken and certain measurements were made. The witness noticed a wastebasket in the “master bedroom” in which he found certain scraps of paper with writing on them. He took them downstairs and gave them to Captain Marcel. He had no search warrant. The handwriting on the scraps of paper was admitted by the defence to be that of the defendant. The scraps having been reassembled, omitting words deleted or indecipherable, read thus: “Some time after 5:301 got out the tubes and brought them with the trouble light to the room. I moved out the radio, connected the light, and put the light on the floor.
Theresa C. Moss, who was seventy-nine years of age and who was assisting in the housework at the defendant’s house on the day of the baby’s death, testified that she was in the kitchen on that day from 5 p.m. to about 9 p.m., that she heard the baby cry, he “made a very faint noise,” and she said (to herself), “Now if he is crying any louder ... I will go in, but his father is there, and he will probably take care of it.” There was evidence adduced by the Commonwealth tending to show that the defendant had displayed an affectionate interest in the baby.
On September 27, 1943, the defendant was placed under arrest. The police had removed the radio, certain wires tied together, a screw driver, three pliers, a bit, and other
At this point the evidence may be summed up concerning the construction of the trouble cord, its characteristics with respect to unwinding, and the conclusions to be drawn from the strands of the cord from which the insulation was missing. The plug and socket ends were manufactured by the Monowatt Electric Corporation of Providence, Rhode Island. The wire used was purchased from the General Electric Company. There was a shipment of this type of socket cords to a store of the J. J. Newbury Company in Pittsfield on August 7, 1942. The designing engineer of
In an intensive preliminary examination as to his qualifications as an expert, Dr. Alan R. Moritz testified that he was professor of legal medicine at the Harvard Medical School, expert assistant in pathology to the department of public safety and consulting pathologist to the department of mental health, associate medical examiner for the county of Suffolk and pro tempore medical examiner for the county of Norfolk, and gave his experience as a pathologist in the matter of autopsies and electrothermal bums. At the conclusion of this inquiry the defendant conceded that Dr. Moritz was qualified as an expert in pathology, and the judge deferred his decision whether the witness was qualified as an expert on electrothermal burns until such time as the witness should be interrogated as to such subject matter. Later when he was so interrogated the judge found that he was qualified to respond. The testimony of Dr. Moritz following the preliminary examination may be summed up as follows: On September 23, 1943, in response to the request of Dr. England, the witness went to the funeral home where the body of the baby lay, accompanied by one of his assistants, Dr. Frank R. Dutra. Dr. Moritz performed an autopsy there on the body of the baby under
Dr. Moritz also testified that the baby "died of acute failure of the heart, induced by the passage of an electric current through the chest from forearm to forearm.”
The testimony of Dr. Joseph T. Walker, State chemist, may be summed up as follows: He found small quantities of urea, a large component of urine, but also found in human perspiration, on the top and bottom of the cushion that had been removed from the chair upon which the baby was resting before being placed on the tray by the defendant. Small quantities of urea were also found by him on the cover of the pillow which the defendant had said he placed beneath the baby’s head and shoulders on the tray, and on the rug. There was not enough urea on the rug to justify a conclusion that there was urine thereon. He found streaks of copper on the bottom of the tray which were caused by dragging some narrow copper object across the bottom of the tray. In two or three of those streaks there-was indication that the narrow copper object was composed of several fine members. In the opinion of the witness the copper wires protruding from the ground wire could have caused the streaks. There were other marks of copper, not streaks, which were caused by the tray resting on a copper object. They might be consistent with lying on a long wire, or with lying on the edge of something having copper in it. The witness made a spectrograph test of the skin from the large lesion excised from the baby’s left arm. A sample of control skin from that arm showed, the normal amount of copper therein. A sample from the. control lesion on the baby’s left, arm showed a greater
One McEachron, an electrical expert, testified that in his opinion the baby could not have been burned by arcing with a wire such as that described as the trouble cord.
The Commonwealth having rested, Dr. Milton Helpern, deputy chief medical examiner in the borough of Manhattan in the State of New York, who qualified as an expert on electrothermal burns, was called as a witness by the defendant. He testified in substance that he had examined the skin and slides in the possession of Dr. Moritz; that the large lesion on the left arm could have been caused by a current flowing between the two bare spots on the trouble cord; that the dumbbell burn on the dorsal side of the left arm could have been caused by that arm resting on the
The witness had been shown a safety pin by defendant’s counsel which was marked for identification. The witness was permitted to compare the safety pin with the photograph of the dumbbell bum. The judge refused to permit the jury to measure the pin with the photograph of the dumbbell burn in question, but stated that they would have plenty of time to place the pin upon the photograph “ when
Alston A. Tillou, general foreman of the power transformer testing section of the General Electric Company at Pittsfield, testified in substance as follows: As part of his duties he investigates electrical accidents, including those from household current, and has observed burns in those cases. The burns on the baby’s right arm described as punctate burns are electrical burns. They are about one thirty-second of an inch in size. Such burns “vary to the extent of the electrode” with which the victim had come in contact. If a person was well grounded and a wire came in contact with his arm, he might receive one or two little perforations in the skin. The witness found twenty-four of such marks around the dumbbell burn, and concluded that they were caused by a wire in a moving contact, or from a spatter of molten metal resulting from an instantaneous short circuit. He thought that the dumbbell burn could well be the image of a safety pin, and outlined the circuit as “from the one wire contacting the left arm down through the forearm to the safety pin, through the diaper, wet diaper, to the body, upward through the body to the shoulder and back to the other electrode.” On cross-examination the witness testified. that both wires (both conductors of the trouble cord) would have to touch the skin and that he did not feel that the insulation on the wire would prevent the bare portions from coming in contact with the arm and causing the burn.
Dr. Charles C. Lund had specialized in surgery but for the last two years had been concentrating all of his research time in study and writing on the subject of burns. His testimony may be summed up thus: The average thickness of the epidermis of a six months old child is one four-hundredth of an inch. The salty fluid surrounding the cells of the skin is a very good conductor. The corium (or cutis
Stephen E. Whiting, an electrical engineer, testified that “if you have a small contact you would expect a higher [skin] resistance”; that “the more pressure you have” the less resistance; that if there was no contact with the skin, he would not expect a flowing of current; that the presence of the insulation and the absence of pressure would tend to prevent a contact from forming; that taking the skin resistance at two hundred ohms, the net result of the current going through the arm, body and buttock and safety pin was two one-thousandths of an ampere; that it would take a long time to produce such a burn as ap
Charles J. Umberger was a chemist and physicist. He testified in substance that he had examined a certain spectrograph plate in evidence; that there was copper present in all of the skin spectrum; that the concentration of copper in the skin from the burned areas is greater than that found in normal skin; that there are weak lines which could be tin, lead or many other elements; that tin and lead and other metallic elements are found in normal human bodies; that the dumbbell burn showed copper; and that the burns on the right forearm showed copper.
William J. Barrett, a chemist, testified that a weak tube in the defendant’s radio in question would cause serious distortion.
The defendant testified in direct examination concerning his education, his service in the first world war and consequent illness as a result of having been gassed, his physical difficulties by reason of having been stricken by infantile paralysis, his father’s disabilities, and the discovery that the baby was of the Mongoloid type. In the matter of the circumstances attendant upon the death of the baby, he denied having stated that the trouble cord was resting about a foot from the tray on which he had placed the baby. He testified that while waiting for Dr. Hunt to come he noted the bare spots on the trouble cord; that he had never noted them before; that he taped the bare spots “that night,” but later cut off the plug and trouble lamp before putting the cord in the incinerator; that the cord was not frayed; that the separation of the conductors occurred one day when he put his cane in a loop of the cord to remove it from the pipes over which it was hanging in the garage and the wire became detached from the socket; that he had not noticed
The testimony of the defendant on cross-examination may be summed up as follows: He did not tell Captain Marcel that the trouble cord was a foot from the tray on which he had placed the baby. He admitted his conversation with Whittlesey concerning the voltage commonly used for domestic purposes. Questioned with respect to whether he had bought a trouble cord other than that which he had testified had transmitted the electric current to the baby’s body, he testified that he had never bought another “trouble cord.” Questioned at length, he testified that he had bought an “extension cord,” but that he did not know where or at what precise time. He did not recall buying one at Kresge’s within two weeks of the baby’s death. He bought an extension cord in the summer of 1943 to replace a cord in a soldering iron which was too short. The extension cord purchased had a plug at one end and a three way outlet at the other end. He was willing to produce the soldering iron. He took the three way outlet off the extension cord, not the plug. He was trying to solder a “clip.”
Moving pictures of the baby, taken in July, 1943, and produced by the defendant, were exhibited to the jury for the purpose of showing the motion of the baby’s arms, legs and body, the lifting of his head, the raising of his elbow, the length of his arms, and the width of his chest.
The defendant having rested, the Commonwealth called as a witness Ida L. Royce, whose testimony may be summed up as follows: She had been employed at Kresge’s store in Pittsfield from the second week in August, 1943, until February, 1944. Sometime between one and two weeks prior to the defendant’s arrest, he entered the Kresge store, asked for an electrical cord, selected one, paid for it, put it in his pocket, and departed. The witness made the sale. The cord had a plug on one end and a socket bn the other. Mary L. Faucher, also called by the Commonwealth, testified that she was employed in the Kresge store in September of 1943, and that the defendant, whom she recognized, entered the store in that month about a week before the baby’s death was reported in the papers.
Recalled by the Commonwealth in rebuttal, Captain Marcel testified that on September 27, 1943, he was in the defendant’s garage and made a search in the vicinity of the work bench and of the tool box on the wall, and that there was no soldering iron there. (The defendant had testified that it was there.) Inspector McColgan and Officer Naughton, having been recalled by the Commonwealth in rebuttal, testified that they too were in the garage with Captain Marcel on September 27 and searched the work bench and the tool box and that the soldering iron was not in either place and that they found none in the garage. One Durrell, foreman of the cord set division of the Monowatt Electric Corporation, called by the Commonwealth, was shown the cord that was attached to the soldering iron, identified it as having been manufactured by the Monowatt corporation, and testified that as manufactured the cord was twelve feet two inches long with a three way outlet at one end
Dr. Moritz, having been recalled by the Commonwealth, testified that there was no gap in the “linear lines” of the so called dumbbell burn, that the lines were continuous from end to end of the lesion. Dr. Dutra, who had excised the lesions on both arms of the baby at the autopsy, testified in like manner. Dr. England, having been recalled, testified that there was no gap in the two linear lines connecting the ends of the dumbbell lesion. Dr. Hunt, recalled, testified that in his opinion the baby would not have a natural reflex protective action which would cause him to reach for the source of the pain, that a baby of his age could not locate pain- in his left arm, and that the length of the forearm of the baby was such that the only possible way that those two lesions (that on the right arm and that on the left arm) could be brought together was by crossing the arms and holding them there. Dr. Walker, having been recalled, testified that he made a test of a safety pin that had been produced by the defendant during the trial as one similar to that toward the left on the baby’s diaper, and that it was a common steel pin which appeared to him to have a common zinc coating. As before noted, there was evidence that there were traces of copper in the dumbbell lesion.
During the closing arguments in the court below, the Commonwealth stressed that the conductor through which the current that killed the baby flowed was the extension cord purchased by the defendant a week or two before the baby died. On the other hand, the defendant insisted as from the beginning that the conductor was the trouble cord. These contentions were not evidence, and it was for the jury to draw their own conclusion from all the evidence itself as to the manner in which the baby met his death, whether it
In the consideration of the evidence the jury were not obliged to accept or reject statements made by the defendant in their entirety, but could give credence to such portions thereof as they deemed trustworthy. Commonwealth v. Goldenberg, 315 Mass. 26, 30.
There was evidence that would have warranted the jury in finding that on August 13, 1943, Dr. Hunt talked with Mrs. Noxon about the baby’s condition and “as to what should be done and who should be consulted”; that within a few days thereafter the defendant called on Dr. Hunt and wanted to know “what the story was about the baby’s condition” and why Dr. Hunt wanted him to go to Boston for a consultation; that Dr. Hunt told him that he considered that the baby was not right mentally; that as a result the baby was taken to the Children’s Hospital in Boston and examined by Dr. Smith,,who reported to the defendant and his wife on August 26 that the baby was of the Mongoloid type, and advised them of his probable unfavorable progress as already set forth above in the summary of evidence. The jury could have found that in the early part of September the defendant talked with Whittlesey, the vice-president of the local power company, and questioned him with respect to the voltage of electrical current supplied to dwellings for domestic purposes; that Whittlesey told him that the voltage in houses in the vicinity was one hundred ten to one hundred fifteen; that referring to an accident reported by a Springfield newspaper in the issue of August 20, 1943, in which a woman was “nearly electrocuted” when, while taking a bath, she attempted to disconnect the cord of an electric heater, the defendant queried Whittlesey concerning whether such an accident could prove fatal “in a residence from the service that is usually supplied”; that Whittlesey, as before set forth, answered, in substance, that if a person was standing upon a damp floor or was in contact with some other ground and came into contact with a defective conductor of electricity the result might be fatal, that the heart might be a contributing cause. The jury could
The jury were not required to find that the so called dumbbell burn with parallel lines in the form of a safety pin on the back of the baby’s left forearm was caused by the laying on of two fine wires charged with electricity and exposed for over an inch in length. On the evidence they could choose to believe that that burn was caused by the electric current coming in contact with the safety pin by which the baby’s diaper was fastened above his hip on his left side. But if the jury did find in fact, as they could if they chose to believe certain witnesses, that the burn under discussion was caused
Applying to the evidence the principles of law governing the weight to be given to circumstantial evidence, concerning which the jury were fully and accurately instructed by the judge (see Commonwealth v. Webster, 5 Cush. 295), they properly could have concluded beyond a reasonable doubt that the baby’s death was not accidental but was caused by the defendant with deliberately premeditated malice aforethought. There was no error in the denial of the defendant’s motions for directed verdicts of not guilty.
We proceed to the consideration of the other assignments of error that have been argued by the defendant. See Commonwealth v. Dyer, 243 Mass. 472, 508; Commonwealth v. Congdon, 265 Mass. 166, 168; Kay v. Audet, 306 Mass. 337, 338.
Assignments of error 1, 4, 5 and 51. Assignments 1, 4 and 5 are based upon exceptions to the denial in whole or in part of motions of the defendant for permission to examine certain personal property belonging to him in the possession of the police and certain tissue removed from the body of the baby, together with photographs and microscopic slides thereof, and to make such, tests of the tissue as the defendant’s experts might deem necessary, for information as to the arm from which the tissue was taken, and that the defendant be furnished copies of- the stenographic record of the formal statements made by the defendant and his wife at the police station, of the pathological diagnoses prepared by the physicians who were present at or performed the autopsy, and of the medical examiner’s report. One of these motions was made
Assignments of error 2, 3, 6, 7 and 8 concern the defendant's exceptions to (1) the denial of his motion to quash the indictment; (2) the granting of his motion for a bill of particulars only as to count 1; (3) the denial of his further motion to quash the indictment on the ground that the first count “does not, in connection with the bill of particulars,” set forth sufficiently the act constituting the crime, or “the time, place, manner and means by which” it was committed, and does not fully and substantially describe the crime; (4) the denial of his motion for further particulars; and (5) the denial of his motion that the particulars furnished by the Commonwealth with reference to count 1 be adjudged insufficient and that the indictment therefore be dismissed. There was no error as to these matters. The first count of the indictment was in the statutory form, G. L. (Ter. Ed.) c. 277, § 17, and set forth the time and the place of the alleged crime. As affected by the particulars furnished by the Commonwealth, it became in substance the same as the second count. The time and the place of the alleged crime were set forth, and the manner in which the
Assignments of error 9 to 13, inclusive. By assignments 9 to 12 the defendant attacks the findings of the judge that jurors Chittenden, Johnson, Brown and Kelly stood indifferent. No exception, however, was taken by the defendant as to these matters. As to assignment 13, the exception taken by the defendant during the examination of the qualifications of juror Chittenden on the ground of misnomer was waived by him before the judge found that Chittenden stood indifferent. It follows that the defendant cannot now be heard to complain of the seating of these jurors. See Commonwealth v. McDonald, 264 Mass. 324, 336; Commonwealth v. Zelenski, 287 Mass. 125, 128.
Assignments of error 15 to 20, inólusive, 48, 49, 50, 66 and 73. We consider these assignments together since they are all based on exceptions to the admission of certain enlarged photographs and negatives of the baby’s arms, of a photograph of the book room in the defendant’s house, of photographic enlargements of specimens of skin on the baby’s arms, and of photomicrographs of a cross section of skin excised from the baby’s arm. The admission of these photographs was not erroneous. It is settled that the admission of photographs in evidence rests largely in the discretion of the trial judge, Commonwealth v. Gray,
Assignments of error 23, 32, 37, 43-, 44, 46, 52, 53, 54, 56, 57, 60, 62, 67, 68, 69, 70, 71, 72, 74, 75, 76 and 89. Assignments 23, 32, 37, 43, 44, 46, 56, 57, 60, 62, 67, 68, 69, 70, 71, 72, 74, 75, 76 and 89 are based on exceptions to the . admission of certain hypothetical questions on the ground that certain questions were based upon insufficient facts or that they were framed in anticipation of the defendant’s evidence, or that the form of certain questions was improper, or that the subject thereof was one for the jury. Some of these assignments are based on exceptions to the refusal of the judge to grant the defendant’s motions to strike out certain answers or parts of answers to hypothetical questions as not being responsive. We have ex
Assignments of error 25 to 28, inclusive, 58, 77, 87 and 88. Assignments 25 to 28 and 58 are based on the defendant’s exceptions to the admission in evidence of parts of insulation removed from a water pipe in the defendant’s garage, three insulation bands, two rolls of tape, a screw driver, a pair of tin snips, several pairs of pliers, two rubber insulated wires tied together, also taken from his garage, and certain pieces of paper taken from the defendant’s house and pieced together and photographic enlargements thereof. All of these articles were removed by the police without a search warrant. With the exception of the insulation, the defendant concedes that those objects of personalty could be admitted properly in evidence even though illegally obtained, but argues that they were not admissible because not connected with the defendant or the crime. We do not concur. “Articles found at the scene of a crime or in the home of a defendant, or which can be traced to the possession of a defendant and are material to an issue, have been frequently admitted in evidence.” Commonwealth v. Giacomazza, 311 Mass. 456, 470, and cases cited. Commonwealth v. Parrotta, 316 Mass. 307, 313. In the instant case the articles of personalty
Assignments of error 29, 30, 31 and 42. These assignments are addressed to the defendant’s exceptions to the admission of a conversation at the defendant’s house between a law partner of the defendant and police officers who were seeking permission to take certain photographs of the defendant’s premises and to remove some articles of
Assignments of error 33 and 34. These assignments are based on exceptions to the admission in evidence of models of the original trouble cord prepared by the manufacturers. The defendant argues that the models were not similar to the original trouble cord and that they have no connection with the defendant or the crime charged. There was no error in their admission. Their admission rested largely, although not entirely, in the discretion of the trial judge, whose duty it is primarily to determine whether there is sufficient similarity between what is offered and the original which is the subject of inquiry to make that which is offered of assistance to the jury. Everson v. Casualty Co. 208 Mass. 214, 218-221. The action of the judge cannot be said to have been erroneous.
Assignments of error 35, 36 and 59. Assignments 35 and 36 concern the exceptions of the defendant to the action of the judge in permitting a witness for the Commonwealth to perform experiments by cutting a cord, prepared by the same manufacturers at the request of the Commonwealth, identical with that found in the plug and lamp which had been cut off from the trouble cord destroyed by the defendant, and which had been admitted in evidence, and in allowing the cord experimented upon to be displayed to the jury. There was no error in so doing. “The permission to perform or make experiments or illustrations in the presence
Assignments of error 39, 40 and 41 do not appear to be pertinent to the exceptions upon which these assignments as set forth in the record are said to be based. In the defendant’s brief he merely asserts as to these assignments that Chief Sullivan “perjured himself on the stand and admitted it . . . [and] repeated gratuitous assertions and violent accusations, all to the prejudice of the defendant,” and, citing Commonwealth v. Gricus, 317 Mass. 403, asks this court to “read and review carefully” the testimony of Chief Sullivan. We consider that evidence as well as all other evidence in the case under the. provisions of G. L. (Ter. Ed.) c. 278, § 33E, as amended by St. 1939, c. 341.
Assignments of error 47, 106 and 107. By assignment .47 the defendant contends that it was error to permit Dr. Moritz to testify concerning the observations made by him at the autopsy conducted on the body of the baby. The
Assignments of error 55 and 61. Assignment 55 relates to the exception to the admission of a question put to Dr. Moritz as to the condition of the model of the original cord when he received it. His answer was that it was “intact.” The defendant argues that this evidence was inadmissible because the model had not then been admitted in evidence as an exhibit but had only been marked for identification. The short answer is that this evidence was inconsequential. Assignment 61 concerns an exception to the admission of a spectrograph plate of “control skin” taken from the baby’s left arm and an analysis of skin taken from an experimental animal. The judge limited its admission to the extent only that it showed experiments on the “control skin” of the baby. The admission of this evidence rested in the discretion of the judge, which does not appear to have been abused.
Assignments of error 64 and 65. These assignments are based upon exceptions to the admission of questions put to Dr. Helpern, a medical expert for the defendant, as to whether the safety pin concerning which Dr. Helpern had been testifying was said by the defendant’s counsel to be like the pin by which the baby’s diaper had been fastened
Assignments of error 78 to 86, inclusive. Assignment 78 is based on exceptions to the admission of questions concerning the purchase by the defendant of the extension cord attached by him to the soldering iron; assignment 79 to the admission of questions with respect to the whereabouts of the extension cord and iron on September 25 and 27; assignment 80 to the admission of evidence as to the manufacture of the extension cord and its original length;
Assignments of error 97 to 100, inclusive, and 103 to 105, inclusive.
Assignments of error 108, 109, 110 and 111. These assignments of error are based on exceptions to the denial of four motions for new trial. They were filed on July 7, 1944, July 8, 1944, October 4, 1944, and November 15, 1944, respectively. Assignments 108 and 109. The first motion was as follows: “Now comes the defendant herein and moves the court, after verdict, to set aside said verdict and set a new trial, and assigns as grounds therefor the following: (1) because the verdict was against the law as given to the jury by the court; (2) because the verdict was against the evidence and the weight of the evidence; (3) for any other cause for which by law a new trial may be granted; (4) because justice has not been done herein.” The second motion was the same as the first except that the words “grant a new trial” were used instead of the words “set a new trial” in the first motion. There was no error in the denial of these two motions. The question of whether the verdict of guilty of murder in the first degree could have been rendered upon the evidence conformably to the law could have been and was raised at the trial by the defendant’s motions for directed verdicts which were denied by the judge, whose action we have sustained in the disposition of the defendant’s exception to that action. See Com
In accordance with the mandate of G. L. (Ter. Ed.) c. 278, § 33E, amended by St. 1939, c. 341, we have examined the whole case and are satisfied that justice does not require a new trial for any reason.
Judgment affirmed.
The bulb or lamp was protected by a wire cage (weighing seven and one half ounces) with a hook attached beneath the cage. For the most part throughout the trial, the cord to which the lamp and protecting cage were attached at one end, commonly known as a trouble lamp, was referred to as the trouble cord rather than as the extension cord to which such lamps as well as other domestic electrical devices are commonly attached. Like counsel in the case, we refer to the cord attached to the trouble lamp as the “trouble cord.”
The aerial and ground wires, separately insulated, were encased in an insulated cable for some distance, but as they extended toward the radio they emerged from the cable with the end of each wire exposed for attachment to the radio.
Later identified by him as an article printed on August 20, 1943, in a Springfield newspaper.
Assignments 94, 95, 96, 101 and 102 were waived.