272 Mass. 94 | Mass. | 1930
The defendant was indicted and convicted of the crime of manslaughter in causing the death of one Alfred Battaglia. At the same trial the defendant was tried upon another indictment charging him with an assault and battery, being armed with a dangerous weapon, upon one Edward Connolly.
On the night of October 12, 1924, Battaglia, Connolly, one Hurley, the defendant, and one Peneco, a friend of the defendant, met near the comer of George and Magazine streets, in the Roxbury district of Boston, and a fight occurred. There was evidence that Hurley and Peneco exchanged blows; that shortly thereafter Connolly and Battaglia were stabbed; and that the defendant “was there with an open knife in his hand, wielding same.”
One Bradley testified that on the night in question he was near the place of the disturbance; that he heard a scream, went over to the corner of the streets, and saw Connolly falling to the pavement and the defendant standing over him with a knife; that the defendant then came running toward him with the knife in his hand and chased him; that in the meantime Connolly got up and ran; that then the defendant stabbed Battaglia “who was out in the street doing nothing and taking no part in the row, and that after stabbing Battaglia, Velleco [the defendant] chased one James Kates, and threw the knife at Kates, the knife hitting a fence, and that Velleco then picked up the knife, put it in his pocket, and walked away.”
A police inspector testified that the defendant after his arrest told him that Peneco and Hurley got into a fight and that he “took out his penknife and began to strike out with it, but that he did not know whom, if anybody, he struck.” This witness also testified that the defendant recognized as his the knife, which was admitted in evidence as belonging to him.
The medical examiner testified that an autopsy was performed on the body of the deceased and showed a wound a little more than half an inch long, in the abdomen, which perforated the large intestine as well as the ileac artery and vein, and that the deceased died from bleeding as a result of such wound; that the wound was consistent with the use of the knife identified as the defendant’s. There was other evidence offered by the Commonwealth, and by the defendant, which it is unnecessary to recite except as it was admitted or excluded subject to the defendant’s exception and will be hereafter referred to.
Esther Lozier, a witness called by the Commonwealth, testified that she lived near the scene of the disturbance; that she heard a noise and looking up the street saw Peneco on the ground, and then saw the defendant chase Kates up the street, but did not see the defendant strike anyone. Subject to the defendant’s exception, this witness was permitted to testify in substance that Kates was walking along the street and that the defendant came over and met him and “made an aim” at him, and that Kates ran and the defendant chased him up the street; that the defendant then came back and the witness saw the defendant had something in his hand which he was putting in his back pocket. A pencil sketch of the vicinity drawn by the district attorney was shown to the witness, showing the location of the various persons and places respecting which she testified. It is the contention of the defendant that evidence that Kates was chased by the defendant was inadmissible as it
The defendant, after testifying that he was the father of four children, was asked by his counsel the ages of the children. There was no error in the exclusion of the question. It does not appear that the answer would be material upon any issues involved at the trial.
One D’Argenio, a witness called by the defendant, after testifying to an obscene and vulgar statement made by someone at the time of the fight, which he knew was intended against some Italians, testified that he did not interfere; that there are plenty of things that the Boston police do not take care of; that he was not going to any station house and “butt in on other people’s business.” He was then asked by the district attorney: “Even if you saw a Guinea or an Italian .... Even if you saw an Italian.” The witness replied, “If you were in my place what would you do?” The trial judge then said, “Notify the police .... That is what you should do as a citizen”; that in certain circumstances it was the duty of every good citizen in the community to try and notify the police. The defendant excepted to these remarks of the judge. We are of opinion that no rights of the defendant were prejudiced by what the judge had said to the witness. The statements to the witness involved no finding of fact required to be found by the jury under G. L. c. 278, § 2, nor did they tend to affect the credibility of the witness, as the defendant argues. The provisions of G. L. c. 278, § 11, were in no way violated by the colloquy between the judge and the witness, and the defendant was not harmed by it. This exception cannot properly be sustained. See Whitney v. Wellesley &
Inspector Dennessey, called in rebuttal, testified, subject to the defendant’s exception, that when he talked with the defendant after his arrest he asked the defendant, “'Why did you draw the knife?’ He says, 'Hurley punched me in the stomach and reached for my chain.’” The defendant having testified that he was struck from behind with some hard object causing him to fall, and that he then took out his knife and swung it in front of him, the testimony was admissible in rebuttal in contradiction of the defendant’s testimony and as bearing upon his credibility. Robinson v. Old Colony Street Railway, 189 Mass. 594, 596. Commonwealth v. Sherman, 234 Mass. 7. Commonwealth v. Williams, 244 Mass. 515, 521.
The reference by the district attorney, in his closing argument, to witnesses called by the defendant as “Italian witnesses” and as “professional witnesses” discloses no error of law. The reference to Italian witnesses could be properly made for the purpose of description, and to distinguish them from witnesses of other nationalities. There is nothing in the record to show in what connection the reference to “professional witnesses” was made, or that such designation was improper or prejudicial to the rights of the defendant. The exceptions to the use of these terms by the district attorney cannot be sustained.
The defendant’s first request for a directed verdict could not properly have been granted. Whether a verdict should be ordered can be raised only by a motion. Common Law Rule 44 of the Superior Court (1923). Patton v. DeViney, 259 Mass. 100, 102. Bray v. Hickman, 263 Mass. 409, 416. Considered on its merits it was denied rightly.
The Commonwealth was not required to prove that the defendant intended to commit the crime of manslaughter. Commonwealth v. Hawkins, 157 Mass. 551. Commonwealth v. Parsons, 195 Mass. 560, 569. Commonwealth v. Peach, 239 Mass. 575, 579. It follows that the defendant’s sixth request was rightly denied. The other requests need not be referred to in detail; a careful consideration of them makes
Exceptions overruled.
