Commonwealth v. Randall

| Mass. | Jun 29, 1927

Carroll, J.

The defendant, a police officer in the city of Boston, was found guilty of manslaughter, the indictment alleging that on December 4, 1926, he “did assault and beat one John J. Ramsay, and by such assault and beating did kill the said John J. Ramsay.” There was evidence that Ramsay and a companion named Munzert entered a lunch cart, called the Tumble Inn, where the defendant was seated; that when they appeared the defendant took hold of Munzert and threw him into the street and then caught hold of Ramsay and threw him out; that as a result of the assault Ramsay’s skull was fractured, and he died on December 10, 1926, from the fracture of his skull. The defendant denied that he was in the lunch cart on December 4, and denied that he assaulted Ramsay. He testified that he found Ramsay on the sidewalk; that he was intoxicated; and that he was placed in the police wagon and carried to the police station.

1. The defendant moved for a bill of particulars. The Commonwealth answered that the time and place of the alleged crime were “substantially as set forth in the indictment,” that the cause of death relied on was “fracture of the skull,” that “no use of a weapon is alleged in the commission of the offence,” and declined to answer further as to the means by which the offence was committed or as to the “overt acts the Commonwealth alleges the defendant committed.” There was no error in denying the defendant’s motion for further particulars. The charge against him was “fully, plainly, substantially and formally” described. It was not contended nor was it alleged that a weapon was used in the commission of the crime. The details of the assault and battery in relation to the fatal result were not required. Commonwealth v. Wakelin, 230 Mass. 567" court="Mass." date_filed="1918-06-25" href="https://app.midpage.ai/document/commonwealth-v-wakelin-6434484?utm_source=webapp" opinion_id="6434484">230 Mass. 567, 571. Commonwealth v. Anderson, 245 Mass. 177" court="Mass." date_filed="1923-05-23" href="https://app.midpage.ai/document/commonwealth-v-anderson-6436240?utm_source=webapp" opinion_id="6436240">245 Mass. 177, 184.

The city or town in which the offence was committed is not stated in the indictment; but no contention is made by the defendant that he was harmed by the Commonwealth’s failure to mention the place of the crime or that he desired further information on this point. The question is not argued and we treat it as waived.

2. The medical examiner fully described the wound and testified that the cause of Ramsay’s death was fracture of the skull; that the autopsy was performed December 10; that the immediate cause of death was bronchial pneumonia; that septic meningitis followed the fracture of the skull. He also testified that the immediate cause of death was acute dilation of the heart, this is “the immediate cause of death in practically all human beings”; that he examined the pus, that the sepsis was caused by “Haemolin streptococci”; that the streptococci might have come into the body from breathing or may have been dormant in the body for some time; that the fracture of the skull was extensive, undermining a large part of the frontal lobe of the brain, and resulting in a hemorrhage in the space between the brain and skull and, as a secondary process, the septic infection of the membranes.

Three witnesses called by the Commonwealth identified the defendant. They testified, in substance, that he was in the lunch cart when Ramsay and Munzert entered; that without provocation he assaulted Ramsay and forcibly removed him. There was evidence that Ramsay was found on the sidewalk suffering from the wound; that as a result of this wound he died on December 10. The guilt or innocence of the defendant was a question for the jury to decide. The judge could not rightfully allow the defendant’s motion for a directed verdict of not guilty. There was evidence of the cause of death, and it could not be ruled that there was a variance between the proof and the allegations. The jury were correctly instructed on the contentions as to the cause of death. Commonwealth v. Hackett, 2 Allen, 136, 142. There was evidence that the cause of death was fracture of the skull. Commonwealth v. Blood, 141 Mass. 571" court="Mass." date_filed="1886-05-07" href="https://app.midpage.ai/document/commonwealth-v-blood-6422057?utm_source=webapp" opinion_id="6422057">141 Mass. 571.

3. During the course of the argument by defendant’s counsel, when discussing the cause of death, he contended that, if the deceased died from “a pus colony in his body which reached his heart,” the defendant was not guilty of manslaughter. At this point the assistant district attorney objected and his objection was sustained. This exception is not to be found in the assignment of errors and is not properly before us.

While arguing on the question of the identity of the defendant, his counsel made reference to another case tried in the Superior Court where the question of the defendant’s identity was involved and was proceeding to relate the details of that case, when he was interrupted by the judge, who said that the facts in that particular case were not in evidence in the case on trial; and further said to counsel, “You may make any suggestions you want to make along that line, you can make any suppositions you want to.” The defendant’s counsel was not prevented from, arguing that the witnesses for the Commonwealth were mistaken in their identification of the defendant, and he fully argued this point. There was no error in refusing to allow him to argue on the facts in another case, which were not before the jury in the case on trial. See Commonwealth v. Anderson, supra, pages 186, 187.

4. Complete and accurate instructions were given the jury. The defendant’s requests in so far as they were correct statements of law were amply covered in the charge. See Commonwealth v. Devlin, 141 Mass. 423" court="Mass." date_filed="1886-04-01" href="https://app.midpage.ai/document/commonwealth-v-devlin-6422024?utm_source=webapp" opinion_id="6422024">141 Mass. 423. The motions for a new trial and arrest of judgment were addressed to the sound discretion of the trial judge. There is nothing in the record before us to show that his discretion was not exercised in a judicial manner. Commonwealth v. Dascalakis, 246 Mass. 12" court="Mass." date_filed="1923-06-20" href="https://app.midpage.ai/document/commonwealth-v-dascalakis-6436305?utm_source=webapp" opinion_id="6436305">246 Mass. 12, 22-25. Commonwealth v. Sacco, 259 Mass. 128" court="Mass." date_filed="1927-04-05" href="https://app.midpage.ai/document/commonwealth-v-sacco-6437954?utm_source=webapp" opinion_id="6437954">259 Mass. 128.

5. Several exceptions were taken by the defendant concerning the order of proof and to evidence introduced by the Commonwealth. The order of proof was within the discretion of the trial judge; the preliminary evidence was subsequently supported. Commonwealth v. Coyne, 228 Mass. 269" court="Mass." date_filed="1917-10-20" href="https://app.midpage.ai/document/commonwealth-v-coyne-6434142?utm_source=webapp" opinion_id="6434142">228 Mass. 269, 270. We have examined all the exceptions of the defendant to the admission of evidence and find no error in its admission. The evidence offered by the defendant was excluded properly by the trial judge. See Commonwealth v. Flynn, 165 Mass. 153" court="Mass." date_filed="1896-01-03" href="https://app.midpage.ai/document/commonwealth-v-flynn-6425472?utm_source=webapp" opinion_id="6425472">165 Mass. 153; Commonwealth v. Dorr, 216 Mass. 314" court="Mass." date_filed="1914-01-09" href="https://app.midpage.ai/document/commonwealth-v-dorr-6432484?utm_source=webapp" opinion_id="6432484">216 Mass. 314, 318.

There was no error in the conduct of the trial.

Exceptions overruled.