Practice, Criminal, Brief before full court. Rules of Court. Supreme Judicial Court. Homicide. Evidence. Witness.
The "concise statement of the case," with which Rule 2 of the rules for the regulation of practice before the full court requires that each brief filed shall begin, is a concise statement of the case shown by the printed record, and therefore it is improper for a brief for the Commonwealth, filed for the argument of exceptions of a defendant taken at the trial of an indictment for murder, to have included in it a statement of the view of the district attorney as to the case developed at the trial rather than a statement of the case presented by the bill of exceptions. In the present case a motion of the defendant to strike such a brief from the files and record was denied, but the court stated that in passing upon the case the statement contained in the brief was wholly disregarded.
At the trial of an indictment for murder there were issues of the identification of a body of a man as that of the deceased and of a patchwork quilt found wrapped around it as one formerly in the home of the deceased. A witness for the Commonwealth testified that he saw the body shortly after it was found and that the quilt "was the quilt, or just like the quilt" which he had seen the deceased take to his home from the home of the witness. In cross-examination, in answer to questions seeking to show that the witness was testifying under the influence of a police officer in charge of the case for the Commonwealth, the witness stated that, when questioned by the officer about two weeks after the finding of the body, he merely had shaken his head. Subject to exceptions of the defendant he was allowed to testify in redirect examination, and his father and mother were allowed to corroborate him, that shortly after seeing the body with the quilt he had stated to his father that the quilt was like that taken from his home "and they may bring you up for the murder." Held, that there was no error in the admission of the evidence of the previous statements to corroborate the witness, following Commonwealth v. Tucker, 189 Mass. 457, 479 et seq.
At the trial of an indictment against a man and a woman for the murder of the woman's husband, the Commonwealth offered as a witness a daughter of the murdered man and of the woman defendant, who was between nine and ten years of age and did not understand the English language. Examined by the presiding judge through an interpreter she stated that she knew what it was to take an oath and that she had been to church. In answer to the question, "Did you learn about God?" she shook her head in the negative. In answer to the question, "If you don't tell the truth, what do you think will be done to you?" she answered, "God will punish us and send us to hell." The presiding judge allowed the witness to testify. Held, that there was no error shown in the action of the presiding judge.
SHELDON, J.
The defendants' motion, made at the argument in this court, to strike from the files and record the brief of the Commonwealth, cannot be allowed. But the statement of the case contained in that brief was not a proper one. It was the view of the district attorney as to the case developed at the trial rather than a statement of the case presented by the bill of exceptions. That bill of course stated only such part of the proceedings had at the trial as were needed to present properly to us the questions of law which were intended to be brought up. The concise statement of the case with which it is required by Rule 2 for the regulation of practice before the full court that each brief shall begin, means a concise statement of the case shown by the bill of exceptions. Nothing more should be included; and the brief of the Commonwealth should not have gone further. Accordingly in passing upon the case we have wholly disregarded the statement contained in that brief.
The first contention of the defendants is that testimony of the statements of Walter Jacobson made out of court shortly after the alleged crime had been committed should not have been admitted. This contention cannot be supported. It was claimed by the defendants that the witness was testifying under the influence of a policeman, and that before coming under this influence the witness had not observed the fact, the identity of a quilt, to which he testified. To meet this claim of the defendants, the judge might allow it to be shown that immediately after seeing the quilt and before meeting the policeman the witness had made the same statements to which he now testified. The subject was fully discussed by Hammond, J., in Commonwealth v. Tucker, 189 Mass. 457, 479, et seq., and we need add nothing to what was there said.
There was no exception to the judge's preliminary examination of the witness Accusia Cusumano outside of the hearing of the jury. The examination was made at the request of the defendants' counsel, and there is nothing to show that it was not made in the manner that they desired, or that the defendants were in any way prejudiced by the method adopted.
We find no error in the action of the judge in allowing this witness to testify. It was for him to decide upon her competency; his decision will not be overruled unless some error is shown; and that is not the case here. Commonwealth v. Mullins, 2 Allen, 295. Commonwealth v. Lynes, 142 Mass. 577. Commonwealth v. Robinson, 165 Mass. 426. Commonwealth v. Reagan, 175 Mass. 335. Commonwealth v. Ramage, 177 Mass. 349.
The other exceptions taken by the defendants were expressly waived. As this is a capital case, we have examined them, and are satisfied that none of them could have been sustained.
Exceptions overruled.