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157 Mass. 233

Commonwealth v. Holmes

Massachusetts Supreme Judicial Court

Decided October 20, 1892

Massachusetts Supreme Judicial Court · decided 1892-10-20

<p>Homicide — Indictment — Evidence — Motion to quash— Variance.</p> <p>At the trial of an indictment for the murder of the defendant’s wife, whose body was found buried in the cellar of the house occupied by them, evidence in detail of threats and acts of violence by the defendant towards his wife, extending over a period of nearly nine years, from shortly after their marriage to about the time of the homicide, with the exception of fifteen months, when they were living separately, is admissible for the purpose of showing a course of conduct on the defendant’s part; and the question of the remoteness of the threats and acts is addressed to the discretion of the court.</p> <p>It is no ground, at the close of the evidence in the case, for quashing an indictment in two counts, one of which charges the murder of a woman by blows and kicks on different parts of her body, and the other “ in some way and manner, and by some means, instruments, and weapons, to the jurors unknown,” that the indictment does not fully, formally, and sufficiently describe the offence, because the evidence discloses a possible cause of death, which must have been known to the grand jury, although there is no evidence as to what appeared before the grand jury.</p> <p>An indictment, in two counts, for the murder of a woman, alleged in the first count that the murder was caused by blows and kicks upon different parts of her body, and in the second count “in some way and manner, and by some means, instruments, and weapons, to the jurors unknown.” At the trial, the evidence disclosed a possible cause of death, but there was no evidence as to what appeared before the grand jury. The court refused to instruct the jury, as requested by the defendant, that there was a variance between the allegation of the second count and the evidence, and instructed them, in substance, that the allegation in the second count above quoted was a material allegation, as to which there need not be any affirmative evidence introduced; that if it did not appear whether or not the grand jury knew the way, manner, means, instrument, or weapon which was the effective cause of the death, the allegation of ignorance in the indictment would be sufficient; that when there was evidence bearing upon the question of the grand jury’s knowledge, the burden was upon the government to establish beyond a reasonable doubt the grand jury’s ignorance of the manner or cause of the death; that the question of such ignorance was one of fact for the jury to determine upon the evidence before them, that the test was not what the grand jury might have known by proper effort, but what they did in fact know ; and that if the jury were satisfied upon the evidence, beyond a reasonable doubt, that the grand" jury did not know the manner or cause of the death, the second count of the indictment was sufficient to sustain conviction, if its other allegations were also established. Held, that the defendant had no ground of exception.</p> <p>An indictment, in two counts, for the murder of a woman, alleged in the first count that the murder was caused by blows and kicks upon different parts of her body, and in the second count “ in some way and manner, and by some means, instruments, and weapons, to the jurors unknown.” At the trial, the physicians who performed the autopsy were allowed to testify to the presence of sand in the mouth, nostrils, and windpipe of the woman, whose body was found buried in the cellar of the house occupied by her, two months after her death. It did not appear for what purpose the evidence was admitted, or what use was made of it. Held, that its admission might be justified, as describing the condition of the body when found.</p>

Relies on Commonwealth v. Abbott · Smith v. Handy · Cluck v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1892-10-20

How this case has been cited

Cited by 42 later decisions — most recently April 2009 · most notably Blue v. State (1944), Commonwealth v. Russ (1919)

4 federal appellate · 36 state decisions — followed in 12 states

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Morton, J.

¶1The only exception which has been argued to us is that relating to the admissibility of evidence introduced by the government as to threats and acts of violence on the part of the defendant towards his wife, from shortly after their marriage down, or nearly down, to the time of the alleged homicide. The evidence tended to show that these acts and threats occurred with more or less frequency during all that time, with the exception *240of about fifteen months in 1888 and 1889, when they were separated, and of a few months, though just how many did not appear, after they lived together again. We think that the evidence was clearly admissible in connection with the other circumstances. It tended to show a settled ill-will and malice on the part of the defendant towards his wife, and therefore bore directly on the question whether there was any motive for him to commit the crime. It was not admitted for the purpose of showing separate and independent acts and threats, but for the purpose of showing a course of conduct. It was unavoidable that, in showing the cause of the defendant’s conduct, evidence of his acts and threats should be introduced. His course of conduct could not be shown so satisfactorily in any other way. Commonwealth v. Goodwin, 14 Gray, 55. Commonwealth v. Madan, 102 Mass. 1. Commonwealth v. Bradford, 126 Mass. 42. Commonwealth v. Abbott, 130 Mass. 472. Commonwealth v. Ryan, 134 Mass. 223. Commonwealth v. Quinn, 150 Mass. 401. State v. Rash, 12 Ired. 382. Cluck v. State, 40 Ind. 263, 270. Mimms v. State, 16 Ohio St. 221. Sharp v. People, 29 Ill. 464. Thrasher v. State, 3 Tex. App. 281.

¶2The question, of the remoteness of the acts and threats was for the court in the exercise of its discretion, and we see nothing to indicate that the discretion was exercised erroneously. Commonwealth v. Goodwin, Commonwealth v. Bradford, Commonwealth v. Abbott, Commonwealth v. Ryan, and Commonwealth v. Quinn, ubi supra. The separation of fifteen months would tend to indicate, if anything, a continuance of ill feeling on the defendant’s part towards his wife, and there is nothing to show on what terms they began to live together again. Even if there had been a reconciliation, that, followed as it was by a resumption by the defendant of his threats and acts of violence, would not render evidence of former acts and threats inadmissible, (Robbins v. Robbins, 100 Mass. 150,) and these taken in connection with the subsequent acts and threats tended to show a substantially continuous course of such conduct.

¶3The motion to quash on the ground that the grand jury knew of the cause of death, and that the indictment did not fully, formally, and sufficiently describe it, was rightly denied. In addition to Commonwealth v. Webster, 5 Cush. 295, the latter *241question has been recently considered in Commonwealth v. Coy, ante, 200.

¶4There was no evidence as to what appeared before the grand jury, and the instructions of the court as to the averment in the second count in the indictment, that the defendant killed his wife in a manner and by means to the grand jurors unknown, were on that account sufficiently favorable to him.

¶5It does not appear for what purpose the evidence as to the presence of sand in the mouth, nostrils, and windpipe was admitted, or what use was made of it. It might have been admitted properly for either one of several reasons. It is enough to say that its admission may be justified, as describing the condition of the body when found. Commonwealth v. Brown, 14 Gray, 419, 431. Exceptions overruled.

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