273 Mass. 240 | Mass. | 1930
This is a petition to establish the truth of exceptions. The relevant facts either stated at the bar or disclosed on the face of the petition are these: Five defendants were tried together upon a joint indictment charging them with robbery and on March 8, 1929, verdicts were returned. The four petitioners were found guilty. A verdict of not guilty was returned against the fifth defendant. No exceptions appear to have been filed with respect to the trial. Each petitioner was sentenced to the State prison on March 13, 1929. The further allegations of the petition in substance are that on February 1, 1930, the four petitioners filed separate motions for a new trial, copies of which are annexed. These several motions, identical in form, were based upon the contention that the defendant was entitled to a new trial as matter of law. The ground alleged was that, although belonging to the class of persons entitled to its benefits, he had been denied the rights secured by a governing statute, St. 1927, c. 59, being the form then in force of the final amendment of § 100A, added to G. L. c.. 123. On March 12, 1930, “ supplementary motions ” for a new trial were filed in behalf of the defendants. Copies of these are annexed to the petition;' each is entitled “ Motion for a New Trial.” One motion was filed in the names of the petitioners Vallar elli, Ventola and Tetula, wherein the ground was stated that it appeared from the report of the department of mental diseases that Polcarri, jointly indicted and tried with them, was of unsound mind and that therefore they had been deprived of a fair trial; another motion was filed by Vallar elli reciting the trial and his earlier motion for a new trial and setting out as a ground for new trial that if it should appear that any of the convicted defendants had been deprived of the benefits of said § 100A and that he had not been so deprived, nevertheless he had been denied a fair trial by being compelled to be associated in the trial with such other defendants and was entitled to a new trial. A motion the same in substance was filed by Ventola. A motion was filed by Angelo Polcarri through
The petition also alleges that on July 17, 1930, the defendants filed a claim of appeal together with certain assignments of errors. Copies of these are annexed to the petition. No mention of this claim of appeal and assignment of errors is made in the copy of the bill of exceptions annexed to the petition. It is not alleged in the petition that the trial by order of a judge of the Superior Court was had under the provisions of §§ 33A-33G inclusive inserted in G. L. c. 278 by St. 1925, c. 279, § 1, and amended by St. 1926, c. 329, §§ 1-6 inclusive. It is provided by said § 33B that proceedings to which said sections are applicable shall include questions of law arising on motions for a new trial. Therefore, in the absence of any allegations to the effect that the cases were tried under said §§ 33A-33G, it is assumed in favor of the petitioners that the filing of a bill of exceptions was proper procedure and that the provisions of G. L. c. 278, § 31, as finally amended by St. 1926, c. 329, §. 6, and c. 231, § 117,
This petition came on to be heard on the question whether a commissioner ought to be appointed. We understand the contention of the petitioners to be that the only question of fact to be determined on this petition is whether they waived the motions for new trial filed on February 1, 1930, and relied at the hearing solely on those filed on March 12, 1930. The other findings of fact made by the judge must be accepted as true.
A motion was filed in behalf of the Commonwealth that the petition be dismissed because (1) the facts alleged raise no question of law, (2) the questions of law, if any, arose after trial and sentence, and (3) the exceptions sought to be established are frivolous.
The first ground for dismissal raises the point whether' the petitioners have put themselves in a position to file a petition to establish exceptions. The judge in his letter to the clerk states that one reason why he has not allowed the exceptions is that the bill has not been presented to the district attorney for his approval. This cannot be treated as a refusal to allow, or a disallowance of, the bill of exceptions. Its true interpretation appears to be that the bill of exceptions ought to be shown to the district attorney, who under G. L. c. 278, § 31, as finally amended by St. 1926, c. 329, § 6, is entitled to an opportunity to be heard, before the judge should finally pass upon the bill. It was the duty of the judge to pass upon the merits of the bill. Bath Iron Works, Ltd. v. Savage, 262 Mass. 123, 125. In his letter the judge states, as another reason for not allowing the bill of exceptions, that it is untrue in that it sets forth that the exceptions were taken at the trial, whereas.they relate solely to motions for a new trial filed nearly a year after the trial. This statement is correct. The distinction between proceedings incident to a trial and those incident to a motion for new trial is established. St. 1926, c. 329, §§ 2, 6. Commonwealth v. Soderquest, 183 Mass. 199, 201. Marsch v. Southern New England Railroad, 235 Mass. 304, 307.
There is nothing in the second ground for dismissal. The motions for new trial were filed within the time allowed by St. 1922, c. 508. As applied to the facts here disclosed, that was decided in Commonwealth v. Marrelli, 266 Mass. 113.
The third ground remains. It is good reason for dismissing a petition of this nature that, even if the truth of the exceptions were established, no question of law of such gravity as properly to call for consideration of the court would be presented. Fitch v. Jefferson, 175 Mass. 56. Bishop, petitioner, 208 Mass. 405. Commonwealth v. Kossowan, 265 Mass. 436, 437 and cases cited.
The entire contention of the petitioners, as shown by their petition and the copies annexed thereto, is that there was failure to comply with the terms of G. L. c. 123, § 100A, as amended by St. 1927, c. 59, and that therefore they are entitled to a new trial as matter of law. So far as here material its words are: “ Whenever a person . . . who is known to have been indicted for any' other offense more than once or to have been previously convicted of a felony, is indicted by a grand jury . . . the clerk of the court in which the indictment is returned . . . shall give notice to the department' of mental diseases, and the department shall cause such person to be examined with a view to determine his mental condition
It is manifest that the questions of law here sought to be raised by the three defendants Polcarri, Tetula and Vallarelli, who according to the allegations of the petition are now admitted to have been previously indicted for “any other offense more than once,” or to have been previously convicted of a felony, might have been raised by them at the trial. Each of these petitioners must be presumed to have known of his own previous experiences of this character. Questions of law which could have been, but were not, raised at the trial cannot be raised as of right on a motion for a new trial. Commonwealth v. Morrison, 134 Mass. 189. Commonwealth v. Dascalakis, 246 Mass. 12, 24. Commonwealth v. Clifford, 254 Mass. 390, 393. Commonwealth v. Cero, 264 Mass. 264, 275. Energy Electric Co., petitioner, 262 Mass. 534, 538.
The report of the department of mental diseases concerning Polcarri falls far short of indicating that he was of unsound mind when the crime was alleged to have been committed, or when the trial took place, or even at any time thereafter. It simply indicates that several days after the termination of the trial he showed, in the opinion of two physicians, sufficient evidence of mental disease to
There is no allegation in the petition that Ventola did not know, at the time he was put upon his trial, that the other three defendants also found guilty had been previously indicted for any other offence more than once, or had been previously convicted of a felony. If he had such knowledge, he cannot now raise the question of law here sought to be raised, because he might have raised it at the trial. If it be assumed in his favor that he was ignorant of those facts at his trial, it is plain that noncompliance with the provisions of said § 100A as amended does not invalidate the trial as matter of law. The terms of that section convey no such intimation. It is an important statutory provision, but its design is to forward the administration of public justice, not to put into the hands of those charged with crime a new weapon of defence. See Commonwealth v. Spencer, 212 Mass. 438. There is express finding by the judge to the effect that the probation officer and clerk were ignorant until after verdict of facts which rendered said § 100A applicable to any of the defendants. Plainly, the requests for rulings were denied rightly and there was no error of law in the denial of the motions for new trial. The case is covered in principle by numerous decisions. Commonwealth v. Devereaux, 257 Mass. 391. Commonwealth v. Kossowan, 265 Mass. 436. Commonwealth v. Wilkins, 243 Mass. 356. Lebowitch, petitioner, 235 Mass. 357. Cheney v. Coughlin, 201 Mass. 204, 211, 212. Commonwealth v. Rogers, 181 Mass. 184, 191, 192. Ashley v. Three Justices of Superior Court. 228 Mass. 63, 69, 70.
Petition dismissed.