Commonwealth of Massachusetts.

ATTORNEY GENERAL'S OFFICE,

BOSTON, 30 COURT ST., JANUARY 11, 1872.

To the Honorable Speaker of the House of Representatives.

SIR-I have the honor to present my Fifth Annual Report. During the last year, there have been the following trials for murder :

1. Indictment in Bristol County against Charles H. Cuffee, for the murder of Benjamin Howard. Verdict, guilty of murder in the first degree. Trial, May 16-18. Questions of law were reserved, and overruled on argument before the full court in October, and the prisoner sentenced to death. J. Brown and W. H. Johnson for the prisoner. District Attorney Marston assisted me in the prosecution.

2. Indictment in Norfolk County against John Moran, for the murder of Charles M. Packard. Verdict, guilty of murder in the second degree. Sentence, imprisonment in the state prison for life. Trial, May 23-25. P. R. Guiney and E. C. Bumpus, for the prisoner. District Attorney French assisted me in the prosecution, and argued the case to the jury, by my request.

Besides the above trials, other indictments for murder have been disposed of, as follows:

3. Indictment in Suffolk County against Thomas Brennan, for the murder of his wife. The prisoner appeared to be probably insane, and, with my consent, was committed by the court to the State Lunatic Hospital at Taunton, before trial, under the provisions of Gen. Sts., c. 172, § 14.

4. Indictment in Norfolk County against Dennis Carney, for the murder of his wife. The same disposition was made of this case as of the last preceding.

5. Indictment in Franklin County against Lyman J. White, for the murder of Calvin Carter. The prisoner pleaded guilty of murder in the second degree, and was sentenced to imprisonment in the state prison for life,

6. Indictment in Plymouth County against James Armstrong, for the murder of Elizabeth Armstrong. The prisoner pleaded guilty of manslaughter, and was sentenced to imprisonment in the state prison for twenty years.

The following indictments for murder remain undisposed of:

1: Indictment in Middlesex County against Thomas Hertz, for the murder of Fanny Coultier.

2. Indictment in Middlesex County against Maria Birmingham, for the murder of an infant child.

3. Indictment in Middlesex County against Joseph Sullivan, for the murder of Henry Talbot.

4. Indictment in Norfolk County against John Kilday, for the murder of Patrick Moran.

5. Indictment in Norfolk County against David Scannell, for the murder of Charles Scannell.

6. Indictment in Suffolk County against Cornelius Conner, for the murder of David Wilber.

7. Indictment in Suffolk County against Michael Doyle, for the murder of Michael McCarty.

8. Indictment in Worcester County against Patrick Dumphy, for the murder of John Stark.

In Cuffee's case, tried in Bristol, in May, certain law questions were reserved, and it was the opinion of the court that they could not properly be heard until the regular law term for that county in October. I recommend the passage of a law that whenever law questions are saved by exception or report in the trial of an indictment for murder, in any county, the court may, if they so order, hear the same, either in the

county where the trial is had, or in Suffolk County, at such time as they may appoint. This will put all the counties on the same footing, in this respect.

I also recommend the passage of a law providing that when a homicide is committed, a judge of the superior court, upon the application of the attorney general, or of the district attorney for the district, or, in the absence of the latter, of the district attorney of any other district, may direct the grand jury to be summoned together, on a day to be fixed by him, and the grand jury thereupon may proceed to investigate the case, and, if they find an indictment for murder, may return it into the clerk's office, and the like proceedings shall thereupon be had as is now provided by law when indictments for murder are returned.

I also recommend the passage of a law providing that two justices of the supreme judicial court shall be sufficient to sit in the trial of indictments for murder. It was always the case in this Commonwealth, till recently, that three justices constituted a quorum for the trial of capital causes; but by the passage of St. 1859, c. 196, § 39, requiring a majority of the justices to constitute a full court, it became necessary that four justices should sit. I am well aware of the advantages which result in the trial of indictments for murder from the presence of more than one justice. The opportunity for consultation, and the gravity and decorum of the proceedings before an assembly of justices, are certainly considerations not to be overlooked. To the credit of the bench and bar of the Commonwealth, I may be pardoned for saying that in twenty capital trials before the jury, during my term of office, there has never, in any instance, been an unpleasant personal discussion, even upon questions of evidence; but I think these advantages may ordinarily be adequately secured by the presence of two justices. The general law of homicide is very well settled. Difficult legal questions seldom arise. The prisoner now has the right of exception. In cases of great public interest, or where difficult questions are anticipated, the justices might and probably would organize a court of three or four members. heavy pressure of judicial duties upon the justices of the supreme judicial court is very well known to the bar, and especially has been well known for more than ten years by

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myself, while holding the offices of reporter of decisions and attorney general. There is a steady increase of these duties. It is not within the proper province of this report to submit any general observations upon this subject, outside of what pertains to the criminal jurisprudence and the proper and economical administration of the criminal law. In view of the numerous indictments for murder now pending, and likely to be found in the future, (judging by the experience of the past few years,) the passage of such a law would afford an appreciable relief to the court.

I have no further specific recommendations to make in regard to our criminal jurisprudence.

There is some difficulty in the administration of our criminal laws, arising from technical objections to indictments. If I could persuade myself that, under our constitution, it would be competent for the legislature to enact that short forms of indictments should be sufficient, like those now used in England and in some of the states of this Union, in which only the general and substantial fact is set out, I should not hesitate to press earnestly for this, as a much needed measure of law reform. But, with my views of the true construction of the constitution, this must be left to a constitutional convention. In matters of detail, certain improvements may no doubt be made from time to time by legislation, some of which I have suggested in former reports.

In taking leave of this office, after a longer time of service than any of my recent predecessors, since Ex-Governor Clifford, it may be suitable to give a brief summary of the principal criminal business which has been under my care.

There have been twenty trials for murder before the jury. In three instances, the jury disagreed; in two, there was an acquittal; in one other, one of the persons indicted was acquitted; seven persons were found guilty of manslaughter; six of murder in the second degree, and six of murder in the first degree. Of the latter six, two were hung; one committed suicide in jail; and the sentences of three were commuted by the governor and council to imprisonment for life. Twenty-five other indictments for murder have been disposed of during the same time, as follows: in five instances, by plea of guilty of