Commonwealth v. Robertson, 162 Mass. 90

Commonwealth v. Robertson

162 Mass. 90 | Mass. | 1894

Knowlton, J.

The defendant contends that this bill of exceptions is not properly before the court, and that therefore it cannot now be considered. The St. 1892, c. 127, is as follows : “The Supreme Judicial Court, sitting as a full court in any county or for the Commonwealth, shall have jurisdiction of all questions of law and of all cases and matters at law or in equity, civil or criminal, arising in any other county than that in or for which it is sitting, and which might properly come before and be heard and determined by the full court sitting for such other county; and, upon an application of one or more of the parties, a majority of the justices of said court shall, in their discretion, have power to order any such questions of law, or case, or matter to be entered and heard by the full court sitting in any county or at Boston for the Commonwealth.” Before the enactment of this statute questions of law arising in other counties where the full court is accustomed to sit might sometimes be heard before that court sitting in Suffolk. Under Pub. Sts. c. 153, § 16, such a hearing may be had by consent of all parties filed in the case, or by order of the judge before whom the trial was had, if he “ deems the exception or appeal frivolous, or intended for delay merely, or that the interests of the parties or the public require a more speedy determination thereof than can be reached in the terms established for the county in which the trial is had,” etc. Under St. 1891, c. 379, § 2, and under the amendatory statute of 1894, c. 204, exceptions arising on the trial of an indictment for a capital crime may be “ entered and determined either at the law sitting of the Supreme Judicial Court held for the county in which they arise, or, upon the order of the justices before whom the trial is had, at the law sitting of the Supreme Judicial Court for the Commonwealth.” The defendant’s counsel argued that this last provision is exclusive, and that St. 1892, c. 127, is not applicable to exceptions arising in a capital case. But we do not so understand the law. This last mentioned statute was intended to give to the full court, upon application of a party, full power to determine the place of hearing questions of law in any case, and it does not take away the jurisdiction of the justices before whom the trial is had to make such prior orders as are authorized by Pub. Sts. c. 153, § 16, or by St. 1891, c. 379.

*95It is also urged in behalf of the defendant that the jurisdiction under St. 1892, c. 127, does not arise until after the questions of law have been formally entered in the full court for the county where the trial was had, or in the full court for the Commonwealth, if the justices before whom the trial was had have made an order for an entry there. But the language is broad enough to give jurisdiction as soon as questions have been put in form for hearing, so that nothing remains to be done but to make the formal entry of them in the full court which the law directs the clerk to make “ as soon as may be.” Pub. Sts. c. 153, § 15. There seems to be no good reason why they should first be entered in the county where the trial is had, and then transferred to Suffolk or some other county. We think the jurisdiction of the court, attaches to make an order in regard to the entry as soon as the questions are ripe for entry, and that it i immaterial whether the application to the full court is made before or after the entry which the law requires when there is no application.

The form of the order in the present case is sufficient. The words “ assigned and heard by the full court sitting at Boston ” are equivalent to “ entered and heard by the full court ” sitting in Boston.*

The defendant filed a motion to quash the indictment, which was overruled. Of the causes on which the motion was founded the fourth was waived at the argument, and the others are as follows: 1. Because the indictment contains no sufficient allegation or description how the defendant held the knife. 2. Because the mortal wound is not sufficiently described. 3. Because *96there is no allegation or description in the indictment upon what part of the head the mortal wound was inflicted. 5. Because the time of death is not alleged, whether instantaneous or not.

1. It is not necessary that the indictment should state in what way nor in which hand the knife was held. This was settled in Commonwealth v. Costley, 118 Mass. 1, 21.

2. We are of opinion that the indictment need not contain a particular description of the wound; it is enough to allege that it was mortal. In Commonwealth v. Woodward, 102 Mass. 155, which was an indictment for manslaughter, this subject was fully considered, and it was held that there is no good reason for requiring a description of an incised wound, any more than of a bruise; and it was said that if the authorities would support the position that a description of an incised wound is necessary, “ the tendency of modern jurisprudence and legislation is such as to justify, if not to require, a departure from the old rule of pleading, in a matter which is, practically, so nearly one of mere form.” The doctrine of this case meets our approval.

3. What we have said in regard to the second objection to the indictment applies also to the third. The" allegation that the wound was upon the head of the deceased is sufficient, without a more definite statement of the place. Such an allegation, if made specific, need not be exactly proved. Commonwealth v. Coy, 157 Mass. 200, 214, and cases cited. The provisions of Article XII. of the Declaration of Rights, which secure to the accused person the right to have his crime or offence “fully and plainly, substantially and formally, described to him,” only require such particularity of allegation as may be of service to him in enabling him to understand the charge and to prepare his defence.

4. It is objected that the time of the death is not stated with sufficient accuracy. The day of the assault is given, viz. September 9, 1893; the assault, resulting in a mortal wound, is described; and then follow the words “ of which said mortal wound the said Mary Robertson then and there died.” It is contended that, instead of the words “ then and there,” the word “ instantly ” should have been used. There can be no doubt that the words “ then and there ” relate to the time previously stated in the indictment as the time of the assault, and we are of *97opinion that they sufficiently state the time of the death. The important fact which must appear in the indictment is that the death occurred within a year and a day after the assault which caused it. Any more particular statement of the time must be regarded as an immaterial allegation which need not be proved as made. The form of the indictment in this particular is that of the fourth count, which was approved in Commonwealth v. Webster, 5 Cush. 295, 322, and of the third count in Commonwealth v. Coy, 157 Mass. 200, 203, and of both counts in Commonwealth v. Holmes, 157 Mass. 233. See also State v. Haney, 67 N. C. 467.

5. The photographs were properly admitted. They were taken only three hours after the homicide, showing the condition of the premises at the time of the discovery of the crime, and they were verified to the satisfaction of the court. They would naturally be expected to assist the jury in understanding, the situation of affair’s at the time and place of the commission of the homicide. Blair v. Pelham, 118 Mass. 420. Randall v. Chase, 133 Mass. 210. The fact that the defendant did not den}’- the killing does not affect the competency of the evidence. The plea was not guilty, and it does not appear that there was any admission until after the Commonwealth had introduced its evidence ; but if the admission was made at the outset, the Commonwealth was not bound to accept it and omit the formal proof of that part of its case. It was entitled to present the issue to the jury with all the evidence legitimately bearing upon it.

Exceptions overruled.

The exceptions were allowed by the justices of the Superior Court and filed in the Superior Court for Bristol County, April 30,1894. May 5,1894, an order was passed, and thereupon sent to the clerk at Taunton, as follows : “ Supreme Judicial Court. Bristol ss. Commonwealth by Indictment vs. Daniel M. Robertson. Order. Whereas, on the fourth day of May, A. d. 1894, application was made to the Supreme Judicial Court, sitting as a full court in the County of Suffolk for the Commonwealth of Massachusetts, by the Attorney General, praying that the exceptions in said case be assigned and heard by the full court sitting at Boston for the Commonwealth; upon which application the parties have been heard by the full court. It is Ordered, that the questions of law arising upon the exceptions in said case be assigned and heard by the full court sitting at Boston for the Commonwealth, on the eighteenth day of June, a. d. 1894, at nine and one half o’clock in the forenoon. W. A. Field, C. J. S. J. C. May 5, 1894.”