-Sept

PROVINCE OF COURT AND JURY

"Exceptis overused.

QUESTIONS OF LAW AND QUESTIONS OF FACT

29

COMMONWEALTH v. ROBINSON.

(Supreme Judicial Court of Massachusetts, 1888. 146 Mass. 571, 16 N. E. 452.)

Indictment against Sarah J. Robinson for the murder of her brotherin-law, Prince Arthur Freeman, by poisoning. Trial in the supreme judicial court, where the defendant was found guilty, and she alleged exceptions.

C. ALLEN, J. We have given to this case a degree of attention commensurate with its importance, and have come to the conclusion that there was no error in the conduct of the trial. While it is well settled in this commonwealth that, on the trial of an indictment, the government cannot be allowed to prove other independent crimes, for the purpose of showing that the defendant is wicked enough to commit the crime on trial, this rule does not extend so far as to exclude evidence of acts or crimes which are shown to have been committed as part of or in pursuance of the same common purpose. Com. v. Jackson, 132 Mass. 16, 18; Com. v. Blood, 141 Mass. 575, 6 N. E. 769. In such cases there is a distinct and significant probative effect resulting from the continuance of the same plan or scheme, and from the doing of other acts in pursuance thereof.

It is somewhat of the nature of the acts or declarations of intention, but more especially of preparations for the commission of the crime. which is the subject of the indictment. If, for example, it could be shown that a defendant had formed a settled purpose to obtain certain property, which could only be got by doing several preliminary things, the last of which in the order of time was criminal, the government might show, on his trial for the commission of that last, criminal act, that he had formed the purpose to accomplish the result of obtaining the property, and that he had done all of the preliminary things which were necessary to that end. This would be quite plain if the evidence of the purpose were direct and clear; as if a letter in the defendant's handwriting should be discovered, stating in terms to a confederate his purpose to obtain the property by the doing of the several successive acts, the last of which was the criminal act on trial. In such case no one would question that proof might be offered that the defendant had done all the preliminary acts referred to, which were necessary steps in the accomplishment of his purpose.

1 For a discussion of principles, see McKelvey on Evidence (3d Ed.) § 31.

But such purpose may also be shown by circumstantial evidence. It is, indeed, usually the case that intentions, plans, purposes, can only be shown in this way. Express declarations of intention, or confessions, are comparatively rare; and therefore all the circumstances of the defendant's situation, conduct, speech, silence, motives, may be considered. The plan itself, and the acts done in pursuance of it, may all be proved by circumstantial evidence if they are of themselves relevant and material to the case on trial. And in such a case it makes no difference whether the preliminary acts are criminal or not. Otherwise the greater the criminal the greater his immunity. Such preliminary acts are not competent because they are criminal, but because they are relevant to the issue on trial; and the fact that they are criminal does not render them irrelevant. Suppose, for further example, one is charged with breaking a bank, and there is evidence. that he had made preliminary examinations from a neighboring room; the fact that his occupation of such room was accomplished by a criminal breaking and entering would not render the evidence incompetent.

It is sometimes said that such evidence may be introduced where the several crimes form part of one entire transaction; but it is perhaps better to say, where they have some connection with each other, as a part of the same plan, or induced by the same motive. Precedent acts which render the commission of the crime charged more easy, more safe, more certain, more effective, to produce the ultimate result which formed the general motive and inducement, if done with that intention and purpose, have such a connection with the crime charged as to be admissible, though they are also of themselves criminal. We do not understand that this general view, stated thus, is distinctly controverted by the counsel for the prisoner; and it is supported by a great number of decisions, only a few of which are here cited. Com. v. Scott, 123 Mass. 222, 25 Am. Rep. 81; Com. v. Choate, 105 Mass. 451; Swan v. Com., 104 Pa. 220; Goerson v. Com., 99 Pa. 388; Shaffner v. Com., 72 Pa. 60, 13 Am. Rep. 649; Mayer v. People, 80 N. Y. 364, 375. See, also, Jordan v. Osgood, 109 Mass. 457, 12 Am. Rep. 731. For cases where such connection was not shown, but where the principle was recognized, see Com. v. Jackson, 132 Mass. 16; State v. Lapage, 57 N. H. 245, 295, 24 Am. Rep. 69; People v. Sharp, 107 N. Y. 427, 14 N. E. 319, 1 Am. St. Rep. 851, (opinion by Peckham, J.)

The ruling at the trial, therefore, was correct, that if evidence should be offered and admitted tending to show that the prisoner knew, before her sister's death, of the existence of the insurance, and that it could be transferred on the death of her sister to herself, and made payable to herself on the death of Freeman, and that, before her sister's death, she had formed a plan or intention to obtain this insurance for her own benefit, and this plan or intention continued to exist or be operative up to the time of Freeman's death, then that

evidence might be offered to show that her sister died of poison, and that the prisoner administered it, as a part of the method employed by her to carry this plan or intention into effect, in connection with evidence that she administered poison to Freeman, as another part of the same plan and with the same general intention.

The court therefore properly held that evidence of this knowledge and plan or intention on the part of the prisoner should first be offered, that the court might judge whether it was sufficient to warrant the introduction of evidence that the sister died of poison administered by the prisoner. This claim and offer of proof on the part of the government, and the arguments of counsel, and the said ruling of the court thereon, were all made in open court, in the prisoner's presence, but in the absence of the jury. The government accordingly proceeded to introduce, with its other evidence to the jury, certain testimony in support of said alleged scheme or intention on the part of the prisoner, which is stated in the bill of exceptions; and, after said testimony had been received, it offered evidence tending to prove the death of the prisoner's sister by arsenic knowingly administered by the prisoner. This evidence was objected to, on the ground that no sufficient evidence had been offered in proof of said alleged scheme or intention, and on other grounds; but the court overruled the objection, and admitted the evidence, subject to the prisoner's excep

tion.

In seeking a new trial on account of the admission of this testimony, the argument of the prisoner's counsel, briefly stated, is as follows: Preliminary evidence must be given to show that the acts offered to be proved were done in pursuance and as a part of some plan or scheme to accomplish the particular result. It is the exclusive province of the court to determine if such evidence is sufficient. The decision of the court, admitting the evidence, is subject to revision in the present case; the testimony upon which that decision was founded having been reported for the purpose. It is not enough that there was some evidence, but the preliminary evidence must amount to proof. The ruling of the court did not expressly affirm the necessity of such proof; that is, as we understand the argument, the necessity of such amount or degree of proof. And, finally, this court, upon a revision of the preliminary evidence reported, should now hold that it was not sufficient to warrant the introduction of evidence to show that the prisoner poisoned her sister, Mrs. Freeman.

The last three of these propositions are the only ones which need any further attention. A consideration of the nature of the question which is presented to the court when it is called upon to decide upon a preliminary question of fact, in order to determine whether offered evidence shall be received, will show that its determination reaches no further than merely to decide whether the evidence may or may not go to the jury. The decision upon this particular question, of the admissibility of the evidence, is ordinarily conclusive, un

less the judge sees fit to reserve or report the question for future revision. Dole v. Thurlow, 12 Metc. 157; Gorton v. Hadsell, 9 Cush. 508, 511; O'Connor v. Hallinan, 103 Mass. 547; Walker v. Curtis, 116 Mass. 98. And in this respect the rule is the same in criminal cases. Com. v. Hills, 10 Cush. 530; Com. v. Mullins, 2 Allen; 295; Com. v. Morrell, 99 Mass. 542; Com. v. Culver, 126 Mass. 464; Com. v. Gray, 129 Mass. 474, 37 Am. Rep. 378. But where, in a case like the present, the admissibility of testimony depends upon the determination of some prior fact by the court, there is no rule of law that, in order to render the testimony admissible, such prior fact must be established by a weight of evidence which will amount to a demonstration, and shut out all doubt or question of its existence. It is only necessary that there should be so much evidence as to make it proper to submit the whole evidence to the jury.

The fact of the admission of the evidence by the judge does not in a legal sense give it any greater weight with the jury. It does not affect the burden of proof, or change the duty of the jury in weighing the whole evidence. They must still be satisfied, in a criminal case, upon the whole evidence, beyond a reasonable doubt. Ordinarily, questions of fact are exclusively for the jury, and questions of law for the court. But when, in order to pass upon the admissibility of evidence, the determination of a preliminary question of fact is necessary, the court, in the due and orderly course of the trial, must necessarily determine it, as far as is necessary for that purpose, and usually without the assistance, at that stage, of the jury. If, under such circumstances, testimony is admitted against a party's objection, it may often happen that he may still ask the jury to disregard it.

Numerous illustrations of the foregoing view might be given, but a few must suffice us. In an indictment for murder, where the question was as to the admissibility of certain statements in the nature of confessions, which were objected to as having been obtained by means of inducements, it was held by this court as follows: "When a confession is offered in a criminal case, and the defendant objects that he was induced to make it by threats or promises, it necessarily devolves upon the court to determine the preliminary question whether such inducements are shown. * * * If the presiding judge is satisfied that there were such inducements, the confession is to be rejected; if he is not satisfied, the evidence is admitted. But, if there is any conflict of testimony or room for doubt, the court will submit the question to the jury, with instructions that, if they are satisfied that there were such inducements, they shall disregard and reject the confession." Com. v. Piper, 120 Mass. 190.

Similar questions arise when it is objected that a witness is not of sufficient capacity to testify intelligently; or that a third person, whose declarations or acts are offered in evidence against a party, was not a partner, agent, or co-conspirator, and did not stand in such a relation as to make his declarations or acts admissible; and in other cases.

In Com. v. Brown, 14 Gray, 419, which was an indictment for causing the death of a woman by means of an attempt to procure a miscarriage, the judge at the trial decided, as matter of fact, on the preliminary question, that there was prima facie evidence that the defendant and two other persons were jointly acting in combination and concert, and aiding and assisting each other in carrying out a common enterprise of procuring an abortion, so as to make the acts and declarations of those two persons competent, and admitted the evidence, and then left the question to be determined by the jury whether they were acting in concert with the defendant or not, with instructions that, if so, the acts and declarations might be considered by them; otherwise not. This course was held by this court to be correct, (pages 425, 426, 432;) the court saying: "The conspiracy of the parties was first satisfactorily made to appear to the court." In Com. v. Crowninshield, 10 Pick. 497, a similar doctrine was held. In all such cases, the court, in deciding to admit the offered testimony, does no more than to hold that enough has been shown to make it proper to submit the testimony to the jury, leaving its weight and credit for their determination. The decision of the judge does not relieve the party offering the testimony from the necessity of establishing every material fact to the satisfaction of the jury. See, also, Com. v. Scott, 123 Mass. 235, 25 Am. Rep. 81; Com. v. Waterman, 122 Mass. 43, 59; Com. v. Preece, 140 Mass. 276, 5 N. E. 494; Ormsby v. People, 53 N. Y. 472; Swan v. Com., 104 Pa. 218; 1 Greenl. Ev. §§ 49, 111; Steph. Dig. Ev. (Chase's Ed.) art. 4.

In this view of the law, it was not necessary that the court should find that the preliminary evidence amounted to full proof, beyond a reasonable doubt, that the prisoner poisoned her sister, in pursuance of a general plan or scheme in which the poisoning of Mr. Freeman was a later step.

We are further of the opinion that the preliminary evidence which was before the court was sufficient to warrant the introduction of evidence to show that the prisoner poisoned her sister, Mrs. Freeman. Certain facts were not in dispute. Prince Arthur Freeman, the person whom the prisoner was charged in the indictment with having poisoned, held a certificate of membership in a society, which provided for the payment of $2,000 upon his death to the beneficiary named therein, with a power of substitution. His wife, who was the prisoner's sister, was named as beneficiary. She died February 26, 1885, after an illness of about three weeks. The prisoner called at Freeman's house, in South Boston, on February 20th, and on February 23d went there to take care of Mrs. Freeman, and stayed till her death. Immediately after Mrs. Freeman's death, Mr. Freeman, with his two children, went to live with the prisoner at her house in Cambridge. One of the children died in April. On or about May 13th, Mr. Freeman appointed the prisoner as beneficiary under the certificate of membership. He died June 27th, after an illness of THROCKM.Ev. (2D ED.)-3