Commonwealth v. Soulia

Lummus, J. The defendant was convicted and sentenced to death for the murder by shooting on November 22, 1948, at Chicopee of Francis W. Hudson. The evidence warranted the finding of the following facts. The defendant and Hudson were not acquainted with each other, but the defendant had met Hudson’s wife where she was at work, and for a considerable time had maintained adulterous relations with her. He had asked her to elope with him, but she had refused to do so. On the day of the shooting, the defendant drove his automobile to Vermont,, ostensibly to go deer hunting with his brother. But he returned in the evening to the neighborhood of Hudson’s house, and brought with him from Vermont a thirty calibre Winchester hunting rifle. — 157 — Early in the evening of November 22, 1948, Hudson was killed by a single bullet from a rifle. The defendant was in the neighborhood at the time. Although at first he denied having a rifle, after it was found he admitted that it was his, and that he had thrown it away in the woods. One cartridge of two in the rifle had been discharged, and that fact he explained by saying that he had shot a fox on the way from Vermont. Expert testimony indicated that a piece of the cartridge found in the body of Hudson had been fired from the defendant’s rifle. Similar cartridges were found in the defendant’s automobile. Footprints found near where' Hudson was shot fitted the overshoes of the defendant. He said that he had gone to the rear of the Hudson house to see whether Mrs. Hudson was “cheating on” him. The first error assigned is to a remark of the judge during the selection of the jury. After eight jurors had been chosen, and were sitting in the jury box, one Eger was called as a juror. He testified that he did not believe in capital punishment. He said he did not believe in murder, but he did not believe that a murderer should be punished. The judge, in excusing him from service, said “You ought to be taken off the list of voters if you are on it.” To that statement the defendant excepted. Nothing in what the judge said could convey the idea to the eight jurors sitting in the jury box that he desired a conviction. His criticism of Eger was merely that Eger was unwilling to do his duty as a juror. It does not appear that the jurors not yet called heard what was said. At any rate, we see nothing prejudicial to the defendant even if they heard all. The charge was full and fair, and required the jury to find guilt beyond a reasonable doubt before the defendant could be convicted. The second assignment is as follows. An expert who was a member of the State police testified that a piece of copper jacket was from the bullet found in Hudson’s body. He testified that he had not marked it because the ballistics department of the State police asked him not to do so. The defendant then asked the judge to strike out the answer, and — 158 — excepted to Ms refusal to do so. We see no error in tMs. It was for the jury to say whether the identification of the copper jacket as a part of the fatal bullet was satisfactory. Moreover, after the question had been answered it was too late to object to it and to have the answer expunged. Boyle v. Columbian Fire Proofing Co. 182 Mass. 93, 98, 99. Crowley v. Swanson, 283 Mass. 82, 85. The ninth, tenth, eleventh, twelfth, thirteenth and sixteenth assignments raise the point that an undischarged cartridge found in the defendant’s rifle, and parts of a bullet taken from the body of Hudson, were not sufficiently identified as such. It is enough to say that the jury could have found them to be sufficiently identified. The eighteenth and nineteenth assignments relate to envelopes in which were placed the cartridge and the parts of a bullet already referred to. These envelopes were marked for identification, but were never admitted in evidence. The judge at the suggestion of the defendant said that they would not go to the jury room, and that they were not to be treated as evidence. We do not see how the action of the judge prejudiced the defendant. Other assignments were not argued, and thereby were waived. Commonwealth v. Gale, 317 Mass. 274, 276. We have considered the whole case, as required by G. L. (Ter. Ed.) c. 278, § 33E, as amended by St. 1939, c. 341, and see no reason for ordering a new trial. Commonwealth v. Gricus, 317 Mass. 403. The verdict of guilty of murder in the first degree was amply supported by the evidence. Judgment affirmed.