324 Mass. 503 | Mass. | 1949
On November 16, 1943, the petitioner, a
The Mandamus Case.
General Laws (Ter. Ed.) c. 22, § 9A, provides that the commissioner of public safety “may, subject-to the approval of the governor, make rules and regulations for . . . [the State police force] including matters pertaining to their discipline, organization and government.” Section 9A also provides that “Any member of said force violating any of the rules or regulations for said force shall be subject to discipline or discharge in accordance with said rules and regulations.” Pursuant to these provisions, rules and regulations for the government of the State police were drawn up by the commissioner of public safety and were approved by the Governor on May 3, 1922. Rule 21 provides that members of the force “shall be subject to trial, judgment and sentence of a trial court in any case when, in the opinion of the commissioner, the good of the service so requires, and for any of the following offences: ...(d) Any violation of the criminal law or of the laws or ordinances of any city or town .... (i) Any act detrimental to the good order and repute of the patrol.” In Rule 23 it is provided that “The procedure in all trials before a trial court of the patrol shall conform to the Manual of Courts Martial of the United States Army, as
On August 18, 1943, charges were preferred against the petitioner alleging a violation by him of Rule 21 (d) and (i) of the State police. In specifications filed with these charges the following with respect to the petitioner was alleged as having occurred in Worcester on August 6, 1943: his arrest for drunkenness, being drunk and disorderly, engaging in an altercation with a police officer, assaulting such officer, failing to report his absence from duty, and showing an utter disrespect for his superiors in the manner in which he reported his absence and his arrest. The petitioner, who was represented by counsel, was tried on these charges by a summary court consisting of a corporal, a sergeant, and a lieutenant of the State police, and was found guilty on all of them. The summary court recommended a dishonorable discharge and this recommendation was approved by the respondent.
The judge made comprehensive findings of fact. We shall refer to them only in so far as they bear upon the exceptions argued by the petitioner.
The petitioner argues that the judge erred in refusing to rule, as requested, that the manual of courts martial by which the trial was governed was not that which was prescribed by the rules and regulations. This point is without merit. We think that it cannot be seriously contended that
In several requests, which were denied subject to his exceptions, the petitioner asked the judge to rule in substance that the conduct of Captain Shimkus was such in connection with the case as to make him an accuser and that this disqualified him from acting as a reviewing officer. In support of this contention the petitioner invokes paragraph 121 of the manual for courts martial which provides that a member of a court martial “will be excused when challenged upon proof of the fact as alleged: . . . (2) That he has personally investigated the charges and expressed an opinion thereon, or that he has formed a positive and definite opinion as to the guilt or innocence of the accused. (3) That he is the accuser.” It appears that Shimkus was not a member of the court which tried the petitioner, and the judge found that he was not the accuser. The judge, however, found that Shimkus was “the reviewing officer who approved the summary court’s decision and recommended to the respondent . . . the finding of guilt and a dishonorable discharge.” We do not pause to consider whether Shimkus, by reason of what he did in connection with the earlier phases of the case,
Certain requests presented by the petitioner asked the judge to rule in substance that the proceedings were illegal because the trial did not conform in certain respects with the procedure set forth in the manual for courts martial. The exceptions based on the denial of these requests are without merit. The respondent concedes that the procedure set forth in the manual was not followed in all respects. It is obvious from an examination of the manual, which was designed to regulate trials in the United States army, that many of its provisions would have little or no application to trials conducted by an organization such as the State police. The judge found that, “during the trial, the 'United States Manual of Courts Martial’ was conformed with in so far as it was applicable, and wherever it was not followed the petitioner waived any objection thereto by stating he was ' agreeable ’ to proceed and by failing to file any plea or motion objecting to any failure of the court so to conform in its pro'eeedings.” Moreover the requirement that the procedure in trials of members of the State police shall conform to the manual for courts martial is found only in the rules governing that organization. In the preamble to those rules it is stated that the rules may not provide for all con
We have considered all of the questions argued by the petitioner and have dealt with such of them as require discussion.
Exceptions overruled.
The Certiorari Case.
The purported bill of exceptions in this case brings nothing to this court for review. Nowhere in the bill does it appear that any exception was taken to any “opinion, ruling, direction or judgment” of the court. G. L. (Ter. Ed.) c. 231, § 113. This defect was not cured by the allowance of the bill by the judge. Herrick v. Waitt, 224 Mass. 415, 417, Sreda v. Kessel, 310 Mass. 588, 590. Whether an exception has been saved must be' determined from what appears in the bill and from no other source. G. L. (Ter. Ed.) c. 231, § 113. Looby v. Looby, 303 Mass. 391, 392-393. Commonwealth v. MacGregor, 319 Mass. 462, 463. We might add that many, if not most, of the questions argued by the petitioner with respect to this bill of exceptions appear to be substantially the same as those argued in connection with the mandamus case.
Exceptions overruled.
See now St. 1947, c. 407.
Rule 23, as noted above, provided that the procedure governing trials “shall conform to the Manual of Courts Martial of the United States Army, as published and in force on January 1, 1917” (emphasis supplied). It appears that the manual used was approved in 1916 and printed in that year. The introduction bears the date of January 1, 1917. The provisions of the manual, however, did not become effective until “on and after March 1, 1917.” This manual had been in use by the department of public safety for the past twenty years.
Shimkus testified that he was the executive officer of the State police and appointed the members of the summary court which tried the petitioner; that he assisted in the preparation of the charges and specifications; that he. ordered Lieutenant McLaughlin to investigate the case; and that he was the reviewing officer.