Commonwealth v. DemboskiCommonwealth v. Demboski
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This case comes before this court on appeal on assignments of error. The defendants, Anthony Demboski and Thomas P. Dineen, with Stephen Wallace (alias Steve Gustin) and Francis P. Sullivan (alias Francis Sullivan) were indicted for an assault with intent to murder Daniel J. McDonald on January 15, 1933. Demboski and Dineen were put on trial, and on March 18, 1933, both defendants were found by the jury “Guilty of assault with intent to kill.” On the same day the defendant Dineen was sentenced to the State prison for a term of not less than nine years nor more than ten years, and the defendant Demboski was sentenced to the State prison for a term of not less than eight years nor more than nine years. During the trial of the case the defendants took exception to the admission and exclusion of evidence by the presiding judge. On March 21, 1933, the defendants, by their attorney; filed a motion to revoke and vacate the sentences and also a motion for a new trial. On March 28, 1933, the defendants filed a waiver of a motion for a new trial. On April 4,- 1933, the motion to revoke and vacate the sen*318tences was denied and the defendants’ duly filed a claim of exception to such denial.
The salient facts which the evidence for the Commonwealth warranted a jury in finding are in substance, as follows: On Saturday, January 14, 1933, Daniel J. McDonald, a member of the Boston police department, was investigating a holdup that had occurred in the Economy company warehouse on D Street, South Boston, on December 25, 1932. On January 14, 1933, he received a telephone call at police headquarters and as a result of that call went in civilian clothes to the premises numbered 2 Vinton Street, South Boston. He arrived there at about 6:35 p.m. January 15, 1933; he entered a room on the second floor and there met Stephen Wallace (alias Steve Gustin, one of the persons named in the indictment in the case at bar), and also the defendant Demboski. He had some talk, with them and took some whiskey which Demboski gave him in a glass, drank it, and then went into the front room and sat down in a chair with his head “pitched down,” “bent down.” As he sat there Dineen came into the room, walked over to him and pushed up his head, looked at him, and hollered, “Steve.” Then Gustin and Dineen left the room and went into the back room where McDonald went when he first entered the place.
There was also present one Thomas Curran who testified as a witness for the Commonwealth, in substance, as follows: After some talk in the back room between Dineen, Gustin and Demboski as to whether McDonald was or was not a police officer, who “pinched us a couple of years ago and gave us an awful beating at the station house,” Gustin sent Curran from the kitchen into the front room to ask McDonald if he wanted a drink. Thereupon Curran went to the front room and asked McDonald if he wanted another drink, and McDonald answered, “Yes.” Curran went back to the kitchen and told Gustin that McDonald “wanted a drink.” Gustin told Curran to get “the glass and bottle that was ... on the table” in the front room. Curran went in, picked up the glass and bottle and took them into the kitchen. As he went to pass the glass and bottle to *319Gustin, Dineen took them and Gustin “says ‘Give me that/” As Dineen was going to give the bottle to Gustin, Dineen said, “I wish I had some arsenic”; Gustin then walked over to the table with the bottle and said, “I’ve got something that is just as good,” put his hand in his pocket and took out a small container and said in the presence of Demboski and Dineen, “This will fix him good.” He then told Curran to go into the front room and keep McDonald company. Curran did as he was told and in “three or four minutes” Gustin, Dineen and Demboski came into the front room. Dineen held the glass. He walked over to McDonald and said, “Here is your drink.” McDonald said, “Thanks,” took the glass, “drank part of the drink and laid it on the table.” Then he picked up the glass and drank the rest of it. He became unconscious about four or five minutes after he took the second drink. While he was in this condition Dembosld put some matches into McDonald’s shoe, lit them, and let them burn right down to the leather. McDonald gave no sign except “to uncross his feet and put them on the floor.” Thereupon Dineen, Gustin, Demboski and Francis Sullivan (the four persons named in the indictment) seized McDonald and dragged him to the head of the stairway outside the front room. They then lifted him, pointed him head first, face downward, and threw him down the flight of stairs leading to the first floor. He landed five steps from the bottom. Dineen and Gustin followed down the steps and pushed and kicked McDonald the rest of the way to the first floor. They then had a consultation as to what should be done with McDonald, and then proceeded downstairs, where they found McDonald at the end of the hallway; they took him outside, put him in the automobile of Gustin, carried him to a point beyond the Economy company warehouse on D Street, South Boston, where he was found by officers, and taken to the City Hospital.
We now consider the assignments of error. The first assignment of error is based on exception 1, and pertains to the action of the judge in locking up the jury with no reasons offered save a request of the district attorney. The *320defendants do not deny that the judge in his discretion may keep a jury locked up during a trial, but contend that he should not act without evidence to prove the necessity of so doing and that the order in the instant case had the effect to “cast an atmosphere of suspicion and guilt upon the defendants, and deprived them of the right to a fair trial without the claptrap of terrorism and danger.” There is nothing in the record to indicate in any degree that the action of the judge was wilful or, in the circumstances, exercised arbitrarily to the prejudice of the defendants. Davis v. Boston Elevated Railway, 235 Mass. 482, 496. Commonwealth v. Gallo, 275 Mass. 320, 328. Commonwealth v. Snyder, 282 Mass. 401, 410. There was no error.
The second, third, fourth and fifth assignments of error are based on exceptions 3, 4, 5 and 6 relating to evidence offered by the Commonwealth to show that McDonald had arrested Gustin and Dineen on a previous occasion and that Gustin and Dineen were together when they were previously arrested. The Commonwealth contends that the evidence admitted disclosed an inference of ill will and hostile feeling by them toward McDonald, and this tended to establish a motive for the assault. The defendants contend that the motive in the crime charged was immaterial and incompetent because the physical facts and assaults and various acts of unlawful beating had been introduced in testimony. It is to be noted that the judge received the evidence of alleged motive “out of order” and stated “If no evidence is put in to make it material I will strike it out.” It appears that no request was made by the defendants to strike out the testimony before the case was sent to the jury, and there is nothing in the record to indicate that the judge’s attention was directed again to the defendants’ contention that the admitted evidence was not material and to the statement of the judge that if it was not material “I will strike it out.” In these circumstances, whether or not the evidence had any probative value which made it admissible in evidence, there was no reversible error. Commonwealth v. Sacco, 255 Mass. 369, 407. Commonwealth v. Knight, 257 Mass. 421, 424.
*321Assignments of error 6, 7 and 8 are based on exceptions 12, 13 and 14. These exceptions relate to the admissibility of a certain conversation in the absence of the defendants. There is no merit in these exceptions. The judge stated that he would allow only so much of the conversation “as bears on the question of time to stand,” that the rest of the conversation was “entirely incompetent,” and, addressing the jury, said: “That is admitted, gentlemen, for the sole purpose of fixing the time. The rest of it you should disregard.”
The ninth assignment of error based on exception 16 relating to a conversation between the witness Curran and Gustin respecting Gustin’s automobile was waived at the hearing before the full court.
The above assignments of error cover the defendants’ exceptions to the admission of evidence.
The tenth and eleventh assignments of error are based on exception 22 and on the denial of the motion to revoke and vacate sentences, and are in fact one and the same, to wit, that the judge has no power to sentence the defendants to State prison on the verdict of the jury that the defendants were guilty of “assault with intent to kill.” The defendants were indicted under
The crime of manslaughter imports the taking of human life by an act not justified in law, but without malice aforethought which is necessary to constitute murder. Commonwealth v. Carey, 12 Cush. 246, 251. Commonwealth v. McLaughlin, 12 Cush. 615. There is a difference between the intent to kill and an intent to murder; and the former may exist when one intends only such killing as amounts to manslaughter. An assault with intent to commit murder and an assault with intent to commit manslaughter are made felonies by statute in this Commonwealth.
The principle that one indicted for assault with intent to murder may be convicted of assault with intent to kill was sustained in State v. Mosca, 90 Conn. 381. In State v. Butman, 42 N. H. 490, under the Rev. Sts. of N. H. c. 214, which provides for the punishment of manslaughter by life imprisonment in some cases, it was contended by the defendant therein that he could not be convicted of an assault with intent to kill only because the words, intent to kill, exclude the idea of manslaughter, which is a killing without design to effect death, and the court speaking through the Chief Justice said at page 493: “That there is neither in law nor in the understanding of the community, any inconsistency in the idea of a design to kill with the nature of the crime of manslaughter, seems apparent from the provisions of the Revised Statutes of Maine, Massachusetts and New-York, which provide, in terms, for the punishment of assaults with intent to commit manslaughter. Whart. Cr. Law 550, 551; Mass. Gen. Laws of 1860, 794, sec. 33.” The court further said: “We are of opinion that, under this indictment, if the evidence shows an intent to kill under such circumstances as to constitute a murder, if death had followed, the party may be convicted of assault with intent to murder. If the offense, if completed, would be manslaughter only, the party may be convicted of an assault with intent to kill only, or may be convicted of an assault only.” State v. Butman, 42 N. H. 490, is on all fours with the case at bar.
Judgments affirmed.