263 Mass. 356 | Mass. | 1928
This is an appeal, on an assignment of errors under St. 1925, c. 279, from a conviction of the defendant of murder in the first degree of Stella Pomkala, age twenty, at Salisbury Beach in the town of Salisbury and county of Essex.
At the trial there was evidence, undisputed by the defendant, which warranted a jury in finding the following facts: On the evening of June 5, 1927, the deceased left the studio of her employer at Salisbury Beach for a walk, wearing on her wrist a Waltham watch and on her finger a ring. At 7:30 a.m. her body was found strangled on the beach some distance from the studio. There were marks in the sand which indicated a struggle. Her body was lying on its back, head toward the water, legs spread apart, dress above her knees, and her bloomers cut in five or six pieces with a very long knife, a razor or scissors.
The autopsy disclosed bruises in both upper fids of her eyes and hemorrhage to the membrane covering the eyes, showing “the sort of thing that would come from the pressure of fingers or thumbs.” A series of bruises across her neck and down the side of her neck, bruises and an abrasion on her hand, which “might well have been produced by the tearing of a wrist watch down over the back of the hand,” laceration of the lesser lips of the vagina and a laceration of the fourchette, which “might have been the result of the application of a male organ.” The autopsy further disclosed that the deceased was a virgin, that no instrument or implement was used in the commission of the murder, and that the marks on her face, neck, hands, vagina and fourchette were imposed on the deceased before her death.
There was uncontradicted evidence that the defendant, wearing “goggles” similar to those found near the body, was on Salisbury Beach Sunday night, June 5, 1927; that he had an odor of liquor on his breath; that at 10:30 p.m. he was seen going in the direction of that part of the -beach where
At the trial the Commonwealth offered and the court received in evidence, against the exceptions of the defendant, a criminal record of the State of West Virginia, showing that the defendant on March 10, 1913, was convicted of robbery and sentenced to five years at the West Virginia penitentiary. It is the contention of the defendant that under G. L. c. 233, § 21 (Third) the record was not admissible because the day, October 18, 1927, when the defendant testified, was "after ten years from the date of expiration of the minimum term of imprisonment imposed by the court.” The statutes of West Virginia upon which the defendant relies to establish his contention that the minimum term of his sentence had expired more than ten years before the day of his testimony are the acts of 1882, c. 118, § 12, fixing the penalty of robbery and the place of the execution of it; the act of 1882, c. 154; and the act of 1893, c. 46, § 26, which reads: "All convicts sentenced to the penitentiary for a term of two years or more, and not for life, who may faithfully comply with all the rules and regulations of the penitentiary during his, or her term of confinement, shall be entitled to a diminution of time from such sentence of five days per month during his or her
The second assignment of errors arises on the exceptions saved to the refusal of the judge to rule (1) “On all the evidence the Commonwealth has not shown, as a matter of law, that the murder was committed with the extreme atrocity or cruelty necessary to a verdict of murder in the first degree”; (2) “The death by strangulation of the- deceased, Stella Pomkala, in the maimer shown by the Commonwealth was not extreme atrocity or cruelty”; (3) “The word ‘extreme’ as used in G. L. c. 265, § 1, has an important significance. Murder that is atrocious and cruel is not sufficient to justify a jury in rendering a verdict of murder in the first degree”; and (4) “The word ‘extreme’ as used in G. L. c. 265, § 1, transcends the ordinary atrociousness and cruelty ordinarily associated with murder.” The recital of the facts, supra, and the circumstances under which the deceased was robbed, raped and murdered would seem to silence every doubt that the judge acted rightly in submitting to the jury the question whether the atrocity or cruelty of the murder was “extreme.” Commonwealth v. Desmarteau, 16 Gray, 1. Commonwealth
The third, fourth and fifth assignments of error are based on exceptions taken to the refusal to rule (1) “Robbery requires a specific intent”; (2) “Rape requires a specific intent”; (3) “Assault with intent to rape requires a specific intent”; (4) “If the jury find that the deceased, Stella Pomkala, was murdered in the commission or attempted commission of the crime of rape or of the crime of assault with intent to rape, and the jury further find that the defendant’s intoxication rendered the defendant incapable of forming the intent required in the crime of rape then the defendant is not guilty of murder in the first degree, but of murder in the second degree”; and (5) “If the jury find that the deceased, Stella Pomkala, was murdered in the commission or attempted commission of the crime of robbery and the jury further find that the defendant’s intoxication rendered the defendant incapable of forming the intent required in the crime of robbery, then the defendant is not guilty of murder in the first degree, but of murder in the second degree.” It is important to bear in mind that the uncontroverted facts warranted the jury in finding as proved beyond a reasonable doubt that there were committed on June 5, 1927, on the person of the deceased, at the same time the crimes of robbery, rape and murder, and not merely evidence of an unsuccessful or uncompleted attempt to commit a robbery, a rape, or a murder. Commonwealth v. Hollis, 170 Mass. 433. Kenney v. State, (Texas) 65 L. R. A. 316. People v. Courier, 79 Mich. 366. Brauer v. State, 25 Wis. 413. State v. Hargrave, 65 N. C. 466. People v. Crowley, 102 N. Y. 234. Regina v. Lines, 1 C. & K. 393. Regina v. Allen, 9 C. & P. 31. Regina v. Hughes, 9 C. & P. 752.
The trial judge limited the consideration of drunkenness to the question of murder committed with deliberately premeditated malice and on the issue presented by the requests instructed the jury as follows: “Intoxication has been fre
Upon the question whether the deceased was assaulted, and whether there was an unsuccessful attempt to rape her, as distinguished from completed crimes, it is the contention of the defendant that it was necessary for the Commonwealth to prove beyond a reasonable doubt that the defendant assaulted the deceased with the specific intent to have carnal knowledge of her person forcibly and against her will; and, as bearing upon the existence of that specific intent, the defendant had the legal right to have the jury, under appropriate instructions, determine as one of the circumstances or facts in the case the question whether the defendant was intoxicated at the time the alleged crimes of robbery, rape and murder were committed, and, if the jury should answer Yes, the degree of the intoxication and its affect upon his capacity to form and entertain a felonious intent to rob the deceased or to have carnal knowledge of her person without her consent and through force and violence, if such be necessary, to accomplish his purpose. Commonwealth v. Hagenlock, 140 Mass. 125, 127. People v. Koerber, 244 N. Y. 147, 152. Director of Public Prosecutions v. Beard, [1920] A. C. 479; 12 A. L. It. 846, and cases collected; annotation, pages 861, et seq. Hopt v. People, 104 U. S. 631, 633. However, we are of opinion that the case at bar in the circumstances disclosed is governed by Commonwealth v. Hawkins, 3 Gray, 463, wherein, at page 466, it is said by Shaw, C.J.: “A man, because he is intoxicated . . . cannot avail himself of his intoxication to exempt him from any legal responsibility, which would attach to him, if sober”; and by Commonwealth v. Gleason, 262 Mass. 185, at page 191, where it was said, in substance, that there was no error in refusing the defendant’s request “that in determining the defendant’s intention [of committing the crime of robbery] the jury should consider whether he was under the influence of liquor.” Commonwealth v. Parsons, 195 Mass. 560, 570.
Exceptions overruled. Judgment on the verdict.