264 Mass. 324 | Mass. | 1928
The defendants were tried upon an indictment which charged them with assault with intent to rob. The jury returned a verdict of guilty of simple assault as to each defendant. A bill of exceptions in ordinary form was allowed and has been prosecuted by the defendants. They also claimed an appeal founded upon exceptions, and seasonably filed assignments of errors alleged to have been committed by the trial judge during the trial; and this appeal with full transcript of the evidence and charge and exceptions saved during the same trial has also been prosecuted and the papers are before us. The defendants state in their brief that, in view of the verdict of the jury, they were in doubt as to the proper way to secure review of the errors of which they complain and have therefore presented both exceptions and appeal.
Recent statutes make clear the correct procedure. By St. 1925, c. 279, §§ 1, 2, a new practice was established regulating “any proceedings or trial upon an indictment for murder or manslaughter,” whereby “no bill of exceptions shall be entered or considered in the Supreme Judicial Court in any such proceedings or trial,” and whereby the evidence shall be
The “concise summary of the record” prepared by the clerk, § 33C, added to G. L. c. 278 by St. 1925, c. 279, § 1, and amended by St. 1926, c. 329, § 3, and “the transcript of the evidence” fail to show an order by the presiding judge that the trial of this case should be under the new procedure. It appears, however, from a supplemental certificate of the clerk that, before the trial of this case, a general order was made by the presiding judge to the effect that “all felonies in this session be tried” under G. L. c. 278, as amended by St. 1925, c. 279, and St. 1926, c. 329. This supplemental certificate is treated as an amendment of the record, and it is assumed that this order is before us and rightly was applicable to the case at bar. That assumption is in favor of the defendants because all the exceptions set forth in the bill of exceptions appear in the assignment of errors and there is also one assignment of error not set forth in the exceptions.
The circumstance that, according to the verdict of the jury, the defendants were guilty of a lesser offence, which is a misdemeanor, rather than of the full felony as charged in the
The defendants presented no requests for rulings, and took no exceptions until the close of the charge. Then they attempted to save an exception to the “whole charge, as being an argument upon the facts, for the Commonwealth.” They also specified numerous particulars of the instructions as being obnoxious to an impartial submission of the case to the jury, and excepted thereto. All these exceptions are included in the assignment of errors. The exception to the entire charge and the assignment of error based thereon are of no avail. Commonwealth v. Duncan, 250 Mass. 405, 407. The other exceptions and assignments of errors based thereon have all been examined with care. It is not necessary to go over them one by one. The general principles which must govern a trial judge in charging a jury were stated with clearness and force in Whitney v. Wellesley & Boston Street Railway, 197 Mass. 495, 502, in words which frequently have been quoted. They need not be repeated. They have been followed and amplified in numerous more recent decisions. Plummer v. Boston Elevated Railway, 198 Mass. 499, 514, 515. Kelley v. Boston, 201 Mass. 86, 89. Johnson v. Foster, 221 Mass. 248, 252. Sawyer v. Worcester Consolidated Street Railway, 231 Mass. 215, 218. Posell v. Herscovitz, 237 Mass. 513, 515. O’Neill v. Ross, 250 Mass. 92, 96, 97. Field v. Hamm, 254 Mass. 268, 271. Fegan v. Quinlan, 256 Mass. 10, 13. Buckley v. Frankel, 262 Mass. 13, 16, 17. We are of opinion that the portions of the charge here assailed, although going to the verge of propriety, did not exceed the limits of judicial discretion and did not violate the rights of the defendants. Every disputed question of
The final assignment of error is that “in no part of the judge’s charge did he discuss the presumption of innocence.” As already pointed out, there was no request for an instruction touching this matter. No exception concerning it was taken at the close of the charge or at any time during the trial. It first appears in the assignment of errors filed on the twenty-second day of March, 1928, the verdict having been returned on the ninth of the preceding month. Manifestly there can be no assignment of error under St. 1925, c. 279, and St. 1926, c. 329, respecting a matter as to which exception might have been saved at the trial, unless there has first been such exception. The first and essential step is the taking of an exception. Without that first step, the second step of filing an assignment of errors cannot be taken. An exception not included in the assignment of errors and an assignment of errors not based upon an exception cannot be treated as rightly presented to the full court. Any other interpretation of these statutes would be contrary to one of the purposes declared in the title of each, namely, “the elimination of delay” in the final disposition of the classes of criminal cases to which they relate. It would also be contrary to the long settled practice prevailing in this Commonwealth. Commonwealth v. Dascalakis, 246 Mass. 12, 24. The words of these recent statutes reveal no purpose to change this practice, but on the contrary tend to confirm it.
It is assumed that in appropriate instances this court has and will exercise the power to set aside a verdict in order to prevent a miscarriage of justice when a decisive matter has not been raised at the trial. Commonwealth v. Dascalakis, supra, page 25. A careful examination of this entire record
Judgment affirmed.
Exceptions dismissed.