257 Mass. 473 | Mass. | 1926
The facts which led to the indictment, as told by the defendant and his witnesses, in substance are
The defendant and his brother testified that they picked Manning up, that he needed assistance, that they stood him up on the sidewalk and after two minutes drove away. Later the same evening the defendant was taken to the hospital where Manning was and there had a conversation with the sergeant in whose custody he was. The defendant offered to testify that the sergeant had said to him in substance that “he had talked with Dr. Turner and Dr. Turner had pronounced the injured man, Manning, as an alcoholic.” The evidence was excluded rightly. The sergeant had testified that he had the following conversation with Dr. Turner in the presence of the defendant: “'What do you say about this fellow here, Doctor? . . .
The second assignment of errors is based upon the allowance in cross-examination of the defendant of the question which follows: “Now he was so unsteady that you could have stolen off or very quietly set him on the sidewalk and walked away, couldn’t you?” The force of the question seems to have been lost in discussion with the trial judge on the rights and limitations of the plea of self defence, all of which were in no way germane to the point in issue. The question was proper, not alone because it was put in cross-examination of the witness, but because it served to test the testimony of the defendant that Manning was unbalanced in his walk, the degree of it, and ultimately, as bearing upon the question whether the defence to the blows of Manning required blows in return.
The third, fourth and fifth exceptions all relate to questions on cross-examination intended to show the state of mind of the defendant toward Kelley and Manning which influenced his speech and action at the time he struck Manning. This examination was clearly within the discretion of the trial judge, and there is nothing in the record which discloses unfairness in its exercise or any abuse of it. Commonwealth v. Schaffner, 146 Mass. 512. Commonwealth v. Brady, 147 Mass. 583. Jennings v. Rooney, 183 Mass. 577, 579. Commonwealth v. Min Sing, 202 Mass. 121.
Exceptions six, seven, eight and nine, were taken to questions in cross-examination of the defendant. As answered, the questions had a legitimate bearing upon the credibility to be given to the testimony of the witness, to the effect that Manning first struck him, as well as to establish the claim of the Commonwealth that the defendant
The tenth exception is not argued by the defendant, and is treated as waived.
The eleventh exception, to the refusal to direct a verdict, was denied rightly. There was evidence to warrant a finding that Manning did not strike the defendant, that the defendant did strike Manning, and that Manning fell and died as the result of such blow. There was further evidence that warranted a finding that the defendant to protect himself from the assault of Manning, if there were such, had no occasion to use force and violence upon him.
The defendant’s request numbered “1,” “On all the evidence, the jury would not be entitled to find that the defendant committed an assault and battery on the person of Manning without justifiable cause,” was refused rightly. On the defendant’s testimony it could have been found that after he was struck on the chest by the fist of Manning, he advanced, “backed up,” and struck Manning in the face with such force that Manning was felled to the ground in a “crunch”; and therefrom it could be further found that the defendant became the assailant in using force which exceeded the bounds of defence and prevention.
Request numbered “2” was, “If the jury find that the defendant, under all the circumstances of the case, had reasonable cause to believe that it was necessary to protect his person, he was justified to use the force necessary to defend his person and prevent the impending danger, and under such conditions he would be justified in the use of such force as was reasonably necessary, and would not be responsible for the consequences that followed the blow.” Upon the evidence for the defendant, this was a case where, following a heated argument with the defendant, Manning, seemingly provoked and irritated by the words of the defendant above quoted, and others not reported, committed a simple assault on the defendant or engaged with him in mutual combat, neither he nor the defendant having a purpose to kill the other or to inflict on him serious or griev
We find no error in the statement of the judge, to which exceptions 12, 13, 14 and 15, were taken; it related to the principles of law which he told the jury were applicable to the facts of this case, and generally to the plea and proof of self defence in an indictment for homicide. It of course was not error further to state that the principles of law thus disclosed were enunciated in Commonwealth v. Barnacle, 134 Mass. 215, 216, and in Commonwealth v. Crowley, 168 Mass. 121, 125, 126.
Judgment to stand.