320 Mass. 635 | Mass. | 1947
Philip R. Bellino and Edward F. Gertsen were jointly indicted for the murder of Robert Williams at Lynn on August 7,-1945. Upon trial, both were found guilty in the first degree, and both have been sentenced to death.
The killing occurred in the nighttime on what is known as the Lynn marshes. The victim, the two defendants, and one Mantia, who pleaded guilty to an indictment as an accessory after the fact, went to the locality in a taxicab. While Mantia remained in the taxicab with the driver, Williams and the two defendants proceeded on foot some distance away from the road and out on the marsh, where the defendant Bellino shot Williams in the back. The shirt worn by the deceased was found beside the body. There was no bullet hole in it. All the evidence, including the testimony of the two defendants, was to the effect that the shirt had been taken off before the shooting, although there was a dispute as to the circumstances in which it had been taken off.
It was the contention of the Commonwealth that the two defendants had enticed Williams out upon the marsh for the purpose of killing him for the reason that they feared that Williams would give information to the police about a "hold-up” in New Hampshire a few days before in which the defendants had taken part and in which a man had been shot. It was the contention of the defendants that they had-reluctantly gone with Williams on the marsh to look for a "hot” number plate that he had left there; that while they were there an altercation arose; that Williams attacked the defendants and shot at them; and that thereupon Bellino shot Williams in self defence.
I. The medical examiner, called by the Commonwealth, testified that there was in the middle of the back of the deceased a small bullet wound; that "there was very little powder marks outside but there was a ring which could have been made by the muzzle ... or the jacket of a gun”;
The defendants assign error in that the medical examiner was not sufficiently qualified as an expert to testify that the marks in or about the wound were caused by powder or that the muzzle of the gun was directly on the skin of the deceased. Bearing on qualification, there was evidence that the witness had been a practising physician, specializing in surgery; that he had been a medical examiner for fifteen years; that he had operated perhaps three times on persons with gun shot wounds, including the type inflicted at close range and the type inflicted at long range; that as medical examiner he had looked at quite a number — about fifteen — bodies where death had been caused by bullet or shot gun wounds, of which about fourteen were bullet wounds; that he believed about eight of these were from bullets fired at close range, all of which, however, were fired through clothing; that he had examined, he should say, six bullet wounds in a nude part of the body, some of these being in the head; but that he had never examined a body where the bullet entered the back of an individual without any clothing.
The defendants argue that the witness was not qualified because it did not appear that he had ever seen a wound from a bullet fired at close range that had not passed through clothing. Assuming that the presence or absence of clothing might affect the appearance of a wound from a bullet fired at close range, we think it clear, nevertheless, that the professional experience of the witness, particularly with respect
2. The defendants assign error in that at the beginning of the trial the judge ordered a jury of fourteen members to be empanelled, and at the time of the final submission of the case to the jury he discharged two of those originally empanelled and submitted the case to the remaining twelve, all in accordance with G. L. (Ter. Ed.) c. 234, § 26B, inserted by St. 1945, c. 428, § 1. The defendants contend that the procedure under this statute has deprived them of the right of trial by jury as secured to them by art. 12 of the Declaration of Rights. See also art. 15. They further contend that this statute, effective after the alleged commission of the crime for which they were indicted, is as to them an ex post facto law which art. 1, § 10, of the Constitution of the United States forbids any State to pass.
Section 26B reads as follows: "In a civil case, or in a criminal case, including a capital case, to be tried with a jury in the superior court which in the opinion of the court is likely to be protracted, the court may so certify and may order impanelled a jury of not exceeding fourteen members
We see nothing in this statute that contravenes the provisions of the Declaration of Rights for the preservation of trial by jury. Undoubtedly it was intended that the substance of “this method of procedure” as practised when the Constitution was adopted should “be held sacred” (art. 15). The substance of the right to be tried by jury consists of those elements in that method of trial which tend to protect the citizen against arbitrary power and to ensure to him that issues of fact shall be determined by the composite judgment of a fairly numerous and representative body of impartial residents of the county selected at large rather than by the judgment of one or of a small number of single individuals who may be subject to peculiar prejudices or whose station and personal experiences in fife may have failed to provide them with sufficient understanding of the conditions and circumstances in which the parties acted. Whatever tends in any appreciable degree to impair the essentials of the right must be struck down. But it has always been understood that the constitutional declaration of the right to trial by jury, like other constitutional declarations of right, was the enunciation of a broad, living principle capable of reasonable adaptation to a constantly changing society and not a barren congealing into rigidity of existing forms, which, with the alteration of time arid circumstance, might even become clogs upon the exercise of the right itself.
There is nothing in § 26B that impairs the fundamental constitutional right. There has been no change in the making up of the jury lists. All members of the particular panel are still drawn by lot as before. The jurors who are to be discharged are selected by lot. When the section was enacted, the defendants’ right of peremptory challenge was extended to all fourteen men drawn. G. L. (Ter. Ed.) c. 234, § 29, as appearing in St. 1945, c. 428, § 2. Impartiality is not affected. The verdict is still rendered by twelve men acting unanimously. All fourteen originally drawn have been duly sworn, have heard the entire trial, and have listened under the sense of responsibility that results from
It is true that the Supreme Court of the United States seems to have taken, at one time at least, a more rigid view of the nature of the constitutional right to trial by jury under the wording of the Seventh Amendment to the Constitution of the United States than this court has been inclined to take of the nature of the rights secured by our own Declaration of Rights. See Slocum v. New York Life Ins. Co. 228 U. S. 364; Minneapolis & St. Louis Railroad v. Bombolis, 241 U. S. 211; Patton v. United States, 281 U. S. 276; Aetna Ins. Co. v. Kennedy, 301 U. S. 389, 394; Bothwell v. Boston Elevated Railway, 215 Mass. 467, 477. But see also Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654; Berry v. United States, 312 U. S. 450; and Galloway v. United States, 319 U. S. 372, 392, 394. Whatever view that court may now take, the Sixth and Seventh amendments have never been held to extend so far as to control the action of the States. There are many authorities that they do not. Twining v. New Jersey, 211 U. S. 78, 98. Minneapolis & St. Louis Railroad v. Bombolis, 241 U. S. 211. Snyder v. Massachusetts, 291 U. S. 97, 105. Brown v. Mississippi, 297 U. S. 278, 285. Palko v. Connecticut, 302 U. S. 319, 322-326. Betts v. Brady, 316 U. S. 455, 461-462. The wording of these amendments seems inappropriate to such an extension.
Section 26B is not an ex post facto law forbidden by art.
Section 26B was obviously enacted to avoid the difficulty which has occasionally arisen when during the course of a long and expensive trial a juror dies or becomes incapacitated and an entire new trial becomes necessary. It is a reasonable provision in the public interest. It deprives no one of any right. Similar statutes have been held valid in other jurisdictions. People v. Peete, 54 Cal. App. 333, 367. State v. Breedlove, 199 La. 965. State v. Dolbow, 117 N. J. L. 560, 563-568. People v. Mitchell, 266 N. Y. 15. State v. Dalton, 206 N. C. 507, 510-513. Robinson v. United States, 144 Fed. (2d) 392, 397. American Tobacco Co. v. United States, 147 Fed. (2d) 93, certiorari granted, limited to another point, 324 U. S. 836, rehearing denied 324 U. S._ 891. There was no error in conducting the trial in accordance with' the statute.
3. The defendant Gertsen assigns error in the denial by the judge of a motion made by Gertsen shortly before he rested his defence that the judge order a mistrial on the ground that this defendant would be prejudiced by a part of his cross-examination by the district attorney at an earlier stage of the trial wherein the district attorney, in endeavoring to lay a foundation for the introduction in evidence, to affect the credibility of Gertsen as a witness, of a record of his conviction of the crime of robbing one Oxman and others on September 24, 1944, had asked him whether he was the
It is provided by G. L. (Ter. Ed.) c. 279, § 4, as appearing in St. 1935, c. 437, § 3, that “Sentence shall be imposed upon conviction of a crime,” with an exception not here material, “although exceptions have been alleged or an appeal taken”; and that where the crime is not punishable by death, “the reservation, filing or allowance of exceptions or the entry of an appeal shall not stay the execution of the sentence unless the justice imposing it, or a justice of the supreme judicial court, files a certificate that in his opinion there is reasonable doubt whether the judgment should stand , . ..” It is provided by G. L. (Ter. Ed.) c. 233, § 21, that “The conviction of a witness of a crime may be shown to affect his credibility ...” with exceptions that need not be here stated.' The defendant Gertsen contends that a sentence imposed in accordance with c. 279, § 4, and not stayed, but where exceptions are still pending, is not a “conviction” which may be shown under- c. 233, § 21, to affect the credibility of the defendant as a witness in another case. See Boston v. Santosuosso, 307 Mass. 302, 330-331.
The present case does not require a decision, of this question. The record of the sentence for robbery was not ad
Moreover, the judge not only excluded the record of conviction but he also told the jury unequivocally to disregard the question to Gertsen in cross-examination involving the indictment for the robbery of Oxman and others and Gertsen’s answer that he was the man referred to in that indictment— “all that testimony,” and to consider that it was never in the case, just as the record itself was being excluded on the ground that a bill of exceptions had been filed in that case and that the case was still alive “and consequently should not be considered by” the jury. Commonwealth v. Ham, 150 Mass. 122, 124. Commonwealth v. Cline, 213 Mass. 225, 227. Commonwealth v. Morrison, 252 Mass. 116, 125. Commonwealth v. Capalbo, 308 Mass. 376, 381-382. Berlandi v. Commonwealth, 314 Mass. 424, 452. Shea v. D. & N. Motor Transportation Co. 316 Mass. 553, 555, and cases cited. There is nothing in the case to suggest that the jury did not follow this instruction. We find no error in the denial of the motion to declare a mistrial.
We have dealt specifically with all assignments of error that have been argued. We have also considered more broadly the whole case upon the law and the evidence, as we are enjoined to do by G. L. (Ter. Ed.) c. 278, § 33E, as amended by St. 1939, c. 341, and as interpreted in Commonwealth v. Gricus, 317 Mass. 403, 406-407. That statute, however, does not require us to review all questions of evidence and of procedure at the trial to which exceptions have not been duly saved, preserved, and prosecuted in order that we may ascertain whether somewhere some successful objection might have been taken and prosecuted but was not. To construe the statute otherwise would be equivalent to taking capital cases altogether out of the operation of c. 278,
Judgment affirmed as to each defendant.