294 Mass. 379 | Mass. | 1936
The defendant was indicted for the murder on July 20, 1935, of Alice D. Sherman, by drowning her in Lake Singletary. The victim was the wife of the defendant. The evidence at the trial included evidence of oral statements by the defendant and of a typewritten statement signed by him, in the nature of a confession of the crime charged. A verdict of murder in the first degree was returned. The case comes before us by appeal with a concise summary of the record, a transcript of the evidence and an assignment of errors, in accordance with G. L. (Ter. Ed.) c. 278, §§ 33A-33G.
First. The defendant assigns as errors the denial of his “motion to quash the panel of jurors,” and the denial of his “motion to excuse Charles E. Kauke from serving on the jury panel.”
In accordance with the defendant’s demand a list of jurors returned for service in this case (see G. L. [Ter. Ed.J c. 212, § 20) was furnished to him as required by G. L. (Ter. Ed.) c. 277, § 66. After the defendant was set at the bar for trial and the district attorney had moved that a jury be em-panelled, but before such motion was allowed, the defendant filed a written motion “that the panel of jurors returned for service in this case be quashed: Because each and every one of said prospective jurors after he had been duly qualified pursuant to the provisions of General Laws, Chapter 234, section 4, Tercentenary Edition, was privately interrogated as to his fitness to serve in this particular case by various State police officers at the request and by the direction of the District Attorney and the answers given by said prospective
The district attorney stated: “Before your Honor passes to final decision on this motion, I want to say that the Commonwealth challenges the truth of the assertion in the second paragraph of the motion, to wit, that each and every one of said prospective jurors was privately interrogated as to his fitness to serve in this particular case by various State police officers at the request and by the direction of the District Attorney, and the answers given by such respective jurors were reduced to writing by said interrogators and submitted to the District Attorney for his use in this case. I challenge the statement. It is not so, and let the matter rest there. I want the record to clearly show that the Commonwealth challenges this motion on the ground that it is not a correct statement of the fact.” Counsel for the defendant stated: “As far as within our knowledge, it is a correct statement.” No evidence was introduced. And no offer of proof of the facts alleged in the motion was made by the defendant unless by the statement in the motion that “the defendant is ready to verify” the facts therein alleged or by the statement of counsel for the defendant above recited. The judge said: “I think it is covered by the case of Commonwealth v. Cero, and other cases, an established practice to find out what the
After several jurors had been selected and sworn, Charles E. Kauke, a person returned for service as a juror in this case, was examined on the voir dire, found to stand indifferent and declared satisfactory to the Commonwealth. The following colloquy then took place: “Mr. Buckley [Counsel for the defendant]. The defendant will be advised by counsel that this juror is acceptable, but some time we have to raise the question we have in mind, and I would like to raise it now without waiving any of his rights. The Court. That is all right. You mean it is a renewal virtually of the motion that you made against the general array at the outset? Mr. Buckley. Yes. The Court. But in this case you want to renew your contention as against this individual juror? Mr. Buckley. Yes. The Court. On the same grounds set forth in the motion to quash? Mr. Buckley. Yes. The Court. Very well, that is understood, and you want this in the form of a motion, that this juror be excused, I suppose. Mr. Buckley. Yes, on the ground he has been questioned by the District Attorney’s office. The Court. You mean by the District Attorney’s office personally? Mr. Buckley. No, but he has been examined as to his qualifications by police officers at the behest of the District Attorney’s office. The Court. Yes. Anything you want to say? Mr. Hoban [District Attorney]. Yes. I challenge that statement. The Court. Anything further? Mr. Buckley. No. Mr. Hoban. And in the absence of proof that this man has been interrogated. Mr. Buckley. We set forth in our motion we are ready to verify the statement set forth in the motion. If you want verification, of course, we have to stop this proceeding here and offer our proof. The Court. What do you contend was done more than the questionnaire, usual and general form as to occupation, residence, etc.? Mr. Buckley. Our contention is, your Honor, it was all done without the knowledge of the defendant or counsel representing the defendant. The Court. Your point is this, when interviewed by the State Police? Mr. Humes [Counsel for the defendant]. At the request of
1. The denial of the defendant’s motion “to quash the panel of jurors” was not error.
This motion in substance, if not in form, was in the nature of a challenge to the array. It was directed to the entire “panel of jurors returned for service in this case” and was based on the ground that all these jurors were disqualified for such service. See Commonwealth v. Walsh, 124 Mass. 32, 35; Commonwealth v. Best, 180 Mass. 492, 493; Hinckley v. Perrin, 253 Mass. 527; Commonwealth v. Cero, 264 Mass. 264, 267-268; Commonwealth v. Welosky, 276 Mass. 398, 400. We assume in favor of the defendant, but do not decide, that the question of disqualification sought to be raised by the motion could properly be so raised with respect to all the jurors, and that the defendant was not restricted. to raising this question with respect to each individual juror at the time of his examination on the voir dire. See Hinckley v. Perrin, 253 Mass. 527; Commonwealth v. Cero, 264 Mass. 264, 267-268.
The allegations of fact in the motion, even if they were true, which the Commonwealth denied, did not show any ground in law for the allowance of the motion. There is no allegation or contention that the jurors were not drawn and summoned according to law. See G. L. [Ter. Ed.] c. 234. Indeed the motion recites that they “had been duly qualified pursuant to the provisions of General Laws, Chapter 234, section 4, Tercentenary Edition.” The motion states as a conclusion of law that “each and all of said jurors became disqualified” by reason of facts previously alleged in the motion. The facts so alleged are (a) that “each and every one of said prospective jurors . . . was privately interrogated as to his fitness to serve in this particular case
The effect on the qualifications of persons drawn to serve as jurors in the trial of a capital case of the fact that after such prospective jurors were summoned according to law and before the case was called for trial they were interrogated by police officers has been considered in recent cases. See Commonwealth v. Cero, 264 Mass. 264; Commonwealth v. Millen, 289 Mass. 441, 476, 478, 485; Commonwealth v. DiStasio, ante, 273, 281-282. Under these decisions the fact, without more, that prospective jurors were so interrogated would not as matter of law disqualify them for service as jurors or as matter of fact show that they were so biased or prejudiced thereby that they did not stand indifferent. Commonwealth v. Cero, 264 Mass. 264, 271, 275. Commonwealth v. Millen, 289 Mass. 441, 475. Some further fact with respect to the nature of the questions asked or other circumstances attending the interrogation of the prospective jurors calculated to influence them, or with respect to the harmful effect upon them of such interrogation, must appear in order to furnish a basis for a finding of impairment of their impartiality. Commonwealth v. Cero, 264 Mass. 264, 269, 271, 275. Commonwealth v. Millen, 289 Mass. 441, 478. No such further fact is alleged in the motion. The allegations that the prospective jurors were interrogated as to their “fitness to serve in this particular case,” that the interrogation was “at the request and by the direction of the District Attorney,” that the answers were “submitted to the District Attorney for his use in this case,” and that “neither the defendant nor his counsel, nor anyone else representing him was present” when any
2. The denial of the defendant’s motion “to excuse Charles E. Kauke from serving on the jury panel” was not error.
This motion was made when this prospective juror was being examined on the voir dire. The judge found that he stood indifferent. His indifference was a matter of fact to be determined by the judge, whose decision was final unless vitiated by error of law. Commonwealth v. Millen, 289 Mass. 441, 478. The grounds in law on which the defendant relies as disqualifying this individual juror are the same as those relied on by the defendant to support the motion already considered to “quash the panel of jurors.” However, as stated with reference to the array in connection with that motion, the facts alleged, if true, without more,
Second. The defendant assigns as error the refusal of the judge, subject to the defendant's exception, to admit in evidence, during the cross-examination of Corporal Thompson of the State police, a witness for the Commonwealth, a copy of a newspaper (The Worcester Telegram of July 23,
Before this newspaper was offered in evidence the witness had admitted that on the afternoon of July 22, 1935, he had permitted a newspaper photographer to make a photostatic copy of the alleged confession.
The basis for the exception to the exclusion of the newspaper as stated in the assignment of errors is that “the jury had the right to say that the purpose of the witness in allowing this newspaper man to make a photostatic copy of this paper was to give undue and unnecessary publicity to the so called confession and thereby create a public sentiment hostile to the defendant which sentiment would to some extent be reflected in the jury room,” and that the defendant “had a right to show that the photostatic copy was actually published.” And the basis for the exception to the exclusion of the question asked this witness, as stated in the assignment of errors, is that this witness “had allowed a newspaper photographer to make a photostatic copy of this paper and the defendant for the purpose of affecting his credibility had a right to inquire into his motive for doing so.”
There was no error in excluding the evidence.
There is nothing in the transcript of the evidence to suggest that the newspaper was offered in evidence at the trial before the jury for the purpose of showing that they were influenced by the publicity given to the alleged confession. This ground for admitting the newspaper was neither obvious nor actually taken by counsel. Rothwell v. First National Bank of Boston, 286 Mass. 417, 422. But, in any event, the newspaper was not admissible for this purpose. This was a matter affecting the indifference of the jurors, and the judge and not the jury was the tribunal to determine whether they stood indifferent. Commonwealth v. Millen, 289 Mass. 441, 478.
Third. The defendant assigns as error the exclusion, subject to the defendant’s exception, of a question asked
Fourth. The defendant assigns as error an interruption by the judge of the argument to the jury by counsel for the defendant.
The grounds of this assignment are as follows: “The statement or so-called confession signed by the defendant was typewritten. It consisted of an original and three carbon copies. The typing was done by one Mitchell a witness for the Commonwealth, who described himself as a typist ‘of a sort’. . . . Mitchell testified that the sheets of paper on which the statement was typed were removed from the typewriter two or three times as the typing progressed, and put back again. . . . The defendant contended that if the four sheets of paper and three sheets of carbon after once being put in the typewriter had been taken out and put back again the lines subsequently written and the margins subsequently made would not correspond exactly, in alignment and spacing with those previously written and made. The defendant also contended that the papers themselves showed no variations whatever.” During the argument of counsel for the defendant he said: “Well, then they brought in Mr. Mitchell. He did the typing. He says that he put in four sheets of paper and three sheets of carbon in that typewriter. I don’t know that you men know anything about typewriters. If you do, you can apply it now, it is in here. I say it is impossible to put any four sheets of paper and three sheets of carbon” — The judge interrupted, saying, “You have a right to submit the question to the jury whether certain things occurred or did not occur, but you cannot state what your personal belief is as to what happened. Just conform to that ruling. ... I have not said you cannot argue the proposition. You have a perfect right to argue the proposition but omit your personal views.” The stenographer, at the request of counsel for the defendant, read his statement as follows: “I say it is impossible to put in four sheets of paper and three sheets of carbon,” And counsel said, “I am going to leave that
Even if we assume in favor of the defendant that an exception to the interruption by the judge of the argument of counsel was duly saved, there was no error. It is improper for an attorney for a party to state his personal beliefs to the jury. He may not properly in argument make a statement of fact “purporting to be on his personal knowledge or . . . concerning which the inference well might be drawn that he had personal knowledge.” Doherty v. Levine, 278 Mass. 418, 419. See also Betts v. Rendle, 236 Mass. 441, 444; Commonwealth v. Mercier, 257 Mass. 353, 376; Commonwealth v. Cooper, 264 Mass. 368, 374. It may be that the language of counsel was susceptible of the interpretation that his words “I say,” by which he prefaced his last statement before the interruption, meant “I contend,” “I submit” or “I argue,” but an “inference well might be drawn that he had personal knowledge ” of the fact stated. In pursuance of the duty of the judge to see that improper arguments were not made to the jury it was within his discretion to guard against the inference that the statement of counsel concerned a matter of which he had personal knowledge by stopping counsel and indicating the proper limits of argument instead of leaving the matter to be dealt with in the charge. See Commonwealth v. Richmond, 207 Mass. 240, 250; O’Neill v. Ross, 250 Mass. 92, 96-97; Commonwealth v. O’Connell, 274 Mass. 315, 323. And the limitation on the argument imposed by the judge was in accordance with law. It did not unduly restrict the scope of argument. Furthermore, there is no sound ground for a contention that the interruption was so prejudicial to the defendant that it was an abuse of discretion on the part of the judge to direct that the objectionable argument end, instead of leaving the matter.to be dealt with in the charge.
Fifth. The defendant assigns as error “the refusal of
There was evidence that the defendant on the day after the death of the victim was questioned by State police officers at their barracks. The alleged confession of the crime made by the defendant at that time orally and embodied in a typewritten statement signed by him was admitted in evidence. The requested instructions related to the circumstances under which the alleged confession was made bearing upon the voluntary nature of such confession.
The first of these requested instructions was as follows-. (1) “If the jury find that any alleged confession by the defendant, whether oral or written, at the Grafton barracks after he was first taken to Corporal Thompson’s room for questioning by the officers was made after any of those officers had said to him 'Now Sherman, I don’t know you so very well, but I have known your father for years and he is a good friend of mine, and I feel as sorry about this matter as you do, and the best thing for you to do is to tell the truth to us and we ’ll go easy with you, ’ then such confession was not a voluntary confession and must be absolutely disregarded by the jury.” The other requests were in the same form, each of them reciting different alleged statements of an officer or officers as follows: (2) “You had better come clean and tell us straight this story; if you don’t we’ll give you the 'truth serum,’”; (3) “We have studied human nature, and we can tell by looking at you that you are a murderer; just the sort of man that would do a deed like that”; (4) “It will be better for you to confess,” or “It will be better for you to tell the truth,” or “It will be better for you to come clean,” or “You had better tell the truth” or “You had better come clean”; and (5) “The best thing you can do is to go in there and tell McCarthy [one of the officersJ the truth of this affair, because he is the very best friend you can have in a case of this kind.”
The judge stated that he would endeavor to combine the requests and give them in substance. In his charge he recited the alleged statements of officers embodied in the requests, and instructed the jury upon the defendant’s con
The defendant contends, however, that the requested instructions were not covered in substance by the charge since the judge did not deal specifically with the alleged statements of the officers embodied in the requests. But the issue whether the confession was not voluntary because obtained by threats, promises or inducements of any sort was to be determined by the jury on all the evidence. Commonwealth v. Preece, 140 Mass. 276. And the defendant was not entitled to have the judge deal specifically with the effect of each fragment of the evidence bearing on this
We have considered all the assignments of error which are set forth in the summary of record and find in them no error. It follows that there must be
Judgment on the verdict.