Commonwealth v. Williams
244 Mass. 515
Mass.
1923
Check Treatment
De Courcy, J.

The defendant was tried for the murder in the second degree of Louis C. Decker, and was found guilty of manslaughter. The exceptions before us relate to the admission and exclusion of evidence, and to the judge’s refusal to direct a verdict of acquittal.

1. There was evidence to warrant a finding that the defendant was guilty. The jury could find the following material facts, on the direct and circumstantial evidence: On the morning of Monday, June 6,1921, at about a quarter of seven o’clock, Decker was found lying in the grass at the edge of a highway in Stock-bridge, near the house of one Henry. He was unconscious, and remained so until his death early that afternoon. Both his eyes were discolored, there was a depression on his forehead over the left eye, and bruises or abrasions appeared on his face, left forearm, and the back of his right hand. He was bleeding from the nose and mouth; and there was blood across the front of his vest, and on some other parts of his clothing. An autopsy, held the next morning, disclosed a large blood clot on the upper part of the left hemisphere of the brain. In the opinion of the doctors who were present at the autopsy, and of other medical expert witnesses, Decker’s death was due to this clot; and the clot was caused by blows, apparently of a club, dealt on the left side of. his face over the eye.

Investigation by the officers tended to eliminate an accident *519as the cause of Decker’s condition. At about nine o’clock on the night of Sunday, June 5, Decker was seen entering the defendant’s house. Later some of the neighbors heard loud talking there, and recognized the voices of Decker and the defendant. Williams was using profane language. A witness, ICinsella, who lived across the road and was sitting on his porch that evening testified: “I heard some awful noise about ten minutes before I went, as though some one was fighting or tumbling on the floor, something heavy falling.” When this witness went to bed, soon after eleven o’clock, the “ voices had stopped altogether.” Later he was awakened from sleep by the barking of dogs, his own and those of the defendant. At about 11:30, one Campion while walking home, and when near the defendant’s house, heard a groan; and turning back, he saw the body of a man lying with his arms over his face, by the side of the road, diagonally across and about one hundred and eighteen feet from the defendant’s house. He noticed a light in that house. He proceeded on his way, but met no one on the road. At about 1:15 a.m. a neighbor, Mrs. Van Zandt, heard some one rapping at her door, and later at the defendant’s door; and she saw a light in the defendant’s house upstairs. Between one and two o’clock in the morning a light drawn wagon was heard passing the Kinsella house; and the barking of dogs was heard near the Henry house, where Decker was later found. This place was about three fourths of a mile from the defendant’s house; and in the opinion of the physicians, Decker could not have walked that distance. In the afternoon of Monday, the day before the autopsy, officers called at the defendant’s house with search warrants for liquor; and they examined the place again subsequently. A spot on the floor of the kitchen, about two feet square, apparently had been recently scrubbed and cleaned up. In the grass, where the witness Campion had seen a man prostrate, there was considerable blood; and heel tracks such as would be made by the shoes worn by the defendant were seen in the mud. Decker’s cap was found in Williams’s yard, about eighteen feet from the piazza. In the corner of the piazza was a baseball bat on which were blood spots and some gray hairs. Various statements were made by the defendant which were conflicting and incriminating. For instance he at first denied that Decker had been at his house *520on Sunday evening, but later admitted that’he was there and drank some liquor. After saying that he last saw Decker at half past nine Sunday night, he said that Decker rapped at his door at 1:30 next morning. When Williams was arrested on the liquor warrant, and before any accusation had been made with reference to the death of Decker, he said to his wife: “they have got me for killing Decker.” Without recital of other details it is clear that the case was rightly submitted to the jury. Commonwealth v. Russ, 232 Mass. 58.

2. Witnesses for the Commonwealth were cross-examined about their testimony in the Lee Police Court, in order to show that they were adding thereto. The purpose presumably was to discredit their testimony at this trial, as a recent invention, or to show that the prosecution had unfairly suppressed evidence at the preliminary hearing. With a view to rebut such inference, the district 'attorney asked Judge Bossidy of the Lee court, a witness called by the defendant, whether it was customary for the Commonwealth to present in his court only sufficient evidence to hold the accused for the grand jury, and he answered, “It is.” Counsel for the defendant admitted that the judge was "familiar with the practice,” but objected to the testimony. It was rightly admitted for the limited purpose of explaining away the inferences which the defendant was attempting to establish.

3. The witness Bossidy testified that in the Lee court the inquiry was made of one Stannard: “Is there anything else, Mr. Stannard, about this case? ” The witness was then asked “ whether this question was not broad enough to admit any further information that Mr. Stannard had about this case?” There was no error in excluding this question. The scope of the question was as apparent to the jury as to the witness, whose opinion on the subject was immaterial. Commonwealth v. Tucker, 189 Mass. 457, 486.

4. The testimony of the same witness as to what Stannard said in the Lee court, in explaining why he overlooked the baseball bat, was properly admitted in view of the attempt to show that Stannard’s testimony was largely of recent invention. Griffin v. Boston, 188 Mass. 475. Commonwealth v. Marshall, 211 Mass. 86.

*5215. The defendant was asked as to certain former convictions. On objection being made to the form of the questions, they were framed substantially in the form suggested by the defendant’s counsel. It is now argued that the records themselves were not put in evidence. No such objection was made at the trial; the district attorney had them in his hand while interrogating the defendant with reference to them; and the judge examined them, considered them as in evidence, and treated them accordingly in his charge. No request was made that they be sent to the jury, and the fact that they were not formally marked as exhibits was not called to the attention of the court. The defendant cannot now for the first time take advantage of this failure, nor were his substantial rights prejudiced thereby. See Root v. Hamilton, 105 Mass. 22; Commonwealth v. Sullivan, 150 Mass. 315.

6. No error is shown in admitting the hypothetical question to Dr. Dodd, on cross-examination. The interrogatory to the expert witness Dr. Donoghue “What, in your opinion, caused the death of Decker?” was rightly excluded. The facts upon which he was expected to base his opinion were not stated; and both the medical and other evidence were conflicting. Connor v. O’Donnell, 230 Mass. 39, 42. We find no prejudicial error in allowing this witness to be asked in cross-examination, “Do you recall any instance in which Dr. McGrath ¡[an expert called by the Commonwealth] had said that death from cerebral hemorrhage was due to injury that you held any other opinion? ” especially in view of the answer that was given.

7. The testimony of Stannard, of officer White, and of Dr. McGrath, was admissible in rebuttal, either in contradiction of testimony offered on behalf of the defendant, or in the discretion of the court. With some hesitation we reach the same conclusion as to the testimony of Mabel ICinsella, offered in rebuttal. Bennett v. Susser, 191 Mass. 329.

What we have said disposes of all the exceptions argued by the defendant. We consider the others as waived.

Exceptions overruled.