315 Mass. 255 | Mass. | 1943
The defendant Venuti has been convicted and sentenced for the murder in the second degree of Antonio Porno on November 15, 1941. Venuti was indicted jointly with one Semenza, one Córtese, and one De Marco; but Córtese was not apprehended, Semenza and De Marco pleaded guilty to manslaughter, and Venuti, hereinafter called the defendant, was tried alone.
The evidence most favorable to the Commonwealth, as developed at the trial, was substantially this: The four original defendants were friends or acquaintances and were accustomed to meet each other in and about a café on Hanover Street in Boston. In the evening of November 15 they met at the café and conversed and drank there. As they were leaving the café, Córtese said to the defendant, “Come on, Zip, what are you afraid of? ” The four then walked to a tenement occupied by one Penta on Henchman Street. Penta and the murdered Porno were very close friends, and the defendant knew them both. Both were in the tenement at the time. When the door was opened in response to a knock, Córtese, De Marco, Semenza, and the defendant entered. “They” said, “All right, stand back,” and pushed Penta and Porno back toward a table. De Marco said to Penta, “How much money have you got?” The defendant closed and locked the door and stayed near it. De Marco slapped Penta and “grabbed” $30 out of his pocket. Without saying anything, Córtese shot Porno four times with a revolver handed to him then and there by Semenza. Porno said, “You got me.” Córtese also threatened Penta with the revolver. “They,” apparently meaning Córtese, De Marco, Semenza and the defendant, said, “Come on,” and all went out, including Penta. They walked about the streets for some minutes, and Córtese disappeared. There was
The foregoing narrative of the killing finds ample support in the evidence, although there was much conflict as to further details which need not be recited here, including a conflict as to whether Córtese and Porno exchanged vile epithets immediately before the shooting. The defendant’s testimony in his own behalf was contradictory at several points and could not all have been true. Most of the more important evidence, except that from the medical examiner, but including that from the defendant, comes from persons who, by their own admissions on the stand, were implicated at least to the extent of having been present in the room at the killing, having returned there and having gone to the wharf with the body, and having again returned to the room after that. There is discernible in the testimony of these witnesses some tendency to minimize their respective parts
1. The defendant’s motion for the direction of a verdict of not guilty was rightly denied. He contends that he could not be found guilty of murder, since there was no evidence that he did any shooting or stabbing and, as he says, no evidence that he joined with others in any common plan or design to cause the death of Porno, or to commit any felony. But without adverting again to the details of the testimony, we think there was ample proof that the defendant, in company with Córtese, De Marco, and Semenza, entered the tenement of Penta in pursuance of a common felonious design or conspiracy, prearranged among the four, and that, while there, the defendant assisted in carrying out that design by adding to the force of numbers through his presence and by guarding the door, and that later, in continued participation with the others, he assisted them in disposing of the body and in effacing the evidences of the crime and thereafter himself became a fugitive from justice. Whether the original felonious design included homicide or went no further than robbery, it supplied the malice aforethought necessary, if homicide was committed in carrying out the design, as the jury could find it was, to render all who actually participated in carrying it out guilty of murder. Commonwealth v. Campbell, 7 Allen, 541, 543-547. Commonwealth v. Pemberton, 118 Mass. 36. Commonwealth v. Madeiros, 255 Mass. 304, 315. Commonwealth v. Devereaux, 256 Mass. 387, 392, 394, 395.
2. In the cross-examination by the defendant of the medical examiner the judge excluded the questions whether the witness was “working as a criminologist” and whether what he did was “to influence the district attorney to allow . . . [him] to perform a second autopsy on this man for the purpose of unearthing evidence to show where the man lay, and where he drew his last breath.” The exclusion was clearly within the discretion of the judge. Answers to such questions as these, whether in the affirmative or in the negative, would not have been helpful. The manner in which the questions were asked, which of course cannot be
3. Photographs of the mouth of the deceased were competent to show that a fragment of tooth found at the alleged scene of the killing fitted a tooth of the deceased, and for other reasons. Commonwealth v. Gray, 314 Mass. 96, 98.
4. There was no error in excluding evidence offered by the defendant that he had “been troubled with his legs and his arches,” had been treated by a doctor, and had worn arch supporters, and that “because of the condition of his legs” he was not physically able to work. This had no bearing upon any issue in the case. The defendant’s own testimony showed that he was able to walk; that he walked about the streets as hereinbefore narrated; and that he was present at the commission of the crime.
The defendant’s assignments of error numbered nine to sixteen inclusive are directed toward alleged errors in charging the jury. We deal with them in so far as they can be thought to rest upon exceptions duly taken. Commonwealth v. Gray, 314 Mass. 96, 102.
5. The defendant excepted to the “limited suggestion on the presumption of innocence” contained in the instruction at the beginning of the charge that “the law presumes . . . [the defendant] to be innocent until his guilt is proved beyond a reasonable doubt.” In Commonwealth v. Mitchell, 248 Mass. 536, a substantially similar instruction was said to be inaccurate (see Commonwealth v. De Francesco, 248 Mass. 9; Commonwealth v. Madeiros, 255 Mass. 304, 315-316) but not prejudicial to the defendant. See Commonwealth v. Kimball, 24 Pick. 366, 374; Commonwealth v. Anderson, 245 Mass. 177, 188-190; McLoughlin v. Sheehan, 250 Mass. 132, 137; Commonwealth v. Powers, 294 Mass. 59, 62-64; Matter of Mayberry, 295 Mass. 155, 168. If the
6. The illustrations and examples given by the judge to the jury in explaining how an inference of combined action might be drawn were pertinent, helpful, and proper. They need not be repeated here in detail.
7. If the defendant can be considered to have excepted to the judge’s remark that he was “guilty of a crime like Penta anyway, or would have been if he did nothing more than help dispose of the body or conceal the body and thus help conceal the crime, and a man may have a motive to falsify whatever his connection with the commission of the crime was,” there was no error. When this remark is read alone it may seem needlessly to lay stress upon a crime for which the defendant was not being tried and possibly to be prejudicial with the jury. But the context shows that this was part of a statement made in the defendant’s interest in pointing out to the jury that they should consider whether acts of the defendant tending to show consciousness of guilt tended to show consciousness of guilt of the crime with which he was charged of being a principal at the murder or
8. There was no error in reading to the jury excerpts from the evidence or in the references to the evidence in the charge. Full and adequate performance of a judge’s duty to instruct the jury on the law often makes it desirable and perhaps necessary that he refer to the evidence in considerable detail. Commonwealth v. Walsh, 162 Mass. 242. Commonwealth v. Horsfall, 213 Mass. 232, 235. Commonwealth v. Green, 302 Mass. 547, 555-556. This the judge did fairly and helpfully. How far the judge will go in this respect and what evidence he will mention must, in general, be left to his judgment. Commonwealth v. Polian, 288 Mass. 494, 499.
9. The defendant complains that further instructions were given after the jury had been sent out and in the absence of his counsel. No exception seems to have been taken, and no complaint is made of the instructions given, which were obviously correct. Further instructions may be given, even though counsel are not in attendance. Commonwealth v. Kelley, 165 Mass. 175.
10. The defendant’s motion for a new trial “in its general aspects was addressed to the sound discretion of the trial judge.” Commonwealth v. Dascalakis, 246 Mass. 12, 25. No abuse of discretion is shown. The motion also set forth in great detail many alleged errors in the conduct of the trial. Without implying that there is merit in any of these claims, it will be enough to say that all of them relate to points that were or could have been raised at the trial. The judge was not bound to consider such questions on a motion for a new trial, and his simple denial of the motion shows no intention on his part to exercise his discretion in
It is proper to add that there is grave doubt whether the assignment of errors in this case was filed within ten days after the written notice of the completion of the summary of the record had been given by the clerk to counsel for the defendant, as required by G. L. (Ter. Ed.) c. 278, §§ 33C, 33D; but, since the practical result is the same, we have dealt with the case on its merits. And, without pausing to determine whether an indictment for murder after a verdict of guilty in the second degree is still “a capital case” and so within the scope of the second paragraph of G. L. (Ter. Ed.) c. 278, § 33E, inserted by St. 1939, c. 341, and assuming that the section applies, we have examined the whole case, and we are satisfied that justice does not require a new trial for any reason.
Judgment affirmed.