Commonwealth v. Marsino
| Decision Date | 22 April 1925 |
| Parties | COMMONWEALTH v. JOSEPH B. MARSINO, alias. COMMONWEALTH v. JOSEPH B. MARSINO, alias. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
March 19, 20, 1925.
Present: RUGG, C.
J., CROSBY, PIERCE WAIT, & SANDERSON, JJ.
Writ of Error. Jurisdiction. National Bank. Practice, Criminal, Plea, Jury issues. Judgment.
A petition for a writ of error must be dismissed if it was filed before judgment in the proceedings in which the error is alleged to have occurred.
A petition for a writ of error in a criminal case must be dismissed if it was filed while exceptions taken at the trial of the case still were undetermined, since, while the exceptions were pending no final judgment could be entered.
In a district court of the United States, the president of a national bank in this State was indicated under U.S. Rev. St. Section 5209 for misapplication of bonds of the bank, and a second defendant was indicted for aiding and abetting the first defendant in the commission of the crime. Both pleaded guilty and were sentenced to imprisonment. Subsequently, in the
Superior Court in this Commonwealth, the second defendant was indicted for larceny and the president was indicted for aiding and abetting him, and the two together were indicted for conspiracy to steal the bonds.
The president pleaded guilty. The other defendant filed a plea to the jurisdiction on the ground that the Federal court "had exclusive cognizance of said offence" and that he had been indicted and convicted in the Federal court for the offences charged in the indictment in the
State court. The trial judge, subject to exception by the second defendant, refused to have the issues of fact on his plea tried first by a separate jury, but submitted that issue to the jury who heard the indictment, specifically charging them in substance that if the president of the bank was an active party in the taking of the bonds, then the Federal court had exclusive jurisdiction and the second defendant must be acquitted; but that if the president's participation was only to the extent of unwittingly and carelessly opening up an opportunity to the second defendant to take the bonds, then the second defendant might be found guilty. The jury found the second defendant guilty. Held, that
(1) The basic facts of the plea being facts which were necessary to be determined against the defendant on the issue of guilt or innocence at the trial on the merits, it was not as a matter of law necessary that a jury first should be empanelled to determine the facts raised on the plea, and that, if those issues be found against the defendant, another jury then should be required to decide the identical issues of fact at the trial on the merits;
(2) The judge was not required to rule or to instruct the jury that the facts, alleged in the Federal court indictment and admitted by the plea of guilty there, were, at the trial of the indictment in the court of the Commonwealth, established indubitably by the judgment of the
Federal court.
A conspiracy to steal does not become merged in the crime of larceny, when the conspiracy is successful, to such an extent that those committing the crime cannot be convicted upon indictments for both offences.
TWO INDICTMENTS, found and returned on May 16, 1924, charging larceny and conspiracy to steal;
TWO PETITIONS for writs of error, filed in the Supreme Judicial Court for the county of Worcester on June 17, 1924; and a
PETITION for a writ of mandamus, filed in the Supreme Judicial Court for the county of Worcester on January 10, 1925.
To each indictment the defendant Marsino filed a plea on the ground that "the Federal Court, to wit, the District
Court of the United States for the District of Massachusetts, has exclusive cognizance of the said offence, and that he has, before the return of said indictment, been indicted and convicted in said District Court for the same criminal acts charged in this indictment, and this court has no cognizance of, or jurisdiction over, the same; and, further, that the offences and criminal acts specified in said indictment as having been committed by him are offences created by and punishable only under, and by virtue of, an act of Congress, to wit, Section 5209 of the Revised Statutes of the United States as amended."
The indictments were tried in the Superior Court before Broadhurst, J. Material proceedings and evidence at the trial are described in the opinion. The defendant Marsino was found guilty and alleged exceptions.
The petitions for writs of error were heard by Carroll, J., who reported them to the full court for determination.
The petition for a writ of mandamus was heard and dismissed by Sanderson, J., who reported it to the full court for determination. Before the full court it was waived by the petitioner.
Asa P. French, for Marsino. C.B. Rugg, Assistant District Attorney, (E.W. Baker, District Attorney, with him,) for the Commonwealth.
The two cases above entitled Commonwealth v. Joseph B. Marsino are indictments returned by the grand jury for the county of Worcester on May 16, 1924. The first charges Joseph B Marsino with the larceny of certain bonds belonging to the First National Bank of Warren, a national banking association duly established under the laws of the United States of America, and Frank L. Taylor and Abraham Goldman as accessories to the larceny before the fact. The second indictment charges Joseph B. Marsino, Frank L. Taylor and Abraham Goldman with conspiracy to steal said bonds of the national bank.
The third and fourth cases, entitled Joseph B. Marsino v. Commonwealth, are two petitions for writs of error filed in the Supreme Judicial Court on June 17, 1924, after the petitioner had appealed from the action of the court on his plea to the jurisdiction and after he had perfected exceptions taken to all the questions of law set forth in the petitions for writs of error. The petitioner, in each petition, assigns as errors in the record of the process and judgment (1) "Because the Superior Court erred in denying him an opportunity to have the issues of fact raised by his said plea to the jurisdiction determined before his arraignment;" (2) "Because the Superior Court erred in overruling the petitioner's plea to the jurisdiction;" (3) "Because the Superior Court erred in compelling the petitioner to go forward with the trial upon the general issue without first determining the questions of fact raised by his said plea to the jurisdiction;" and (4) "Because the Superior Court erred in pronouncing judgment upon the verdict rendered against the petitioner at said trial (a) because the Court had no jurisdiction of said cause; and (b) because the conspiracy charged against him was merged in the larceny for which he had previously been adjudged guilty and sentenced as aforesaid."
The fifth case, entitled Joseph B. Marsino v. Clerk of Superior Court, is a petition for mandamus, filed January 10, 1925, against the clerk of the Superior Court for Worcester County, which seeks a direction to the clerk to omit from the record one of three bills of exceptions allowed by the court as constituting one record, but which was subsequently waived by the defendant.
At the hearing before the full court the defendant stated that he waived the petition for the writ of error if the filing of such was incompatible with the prosecution of the exceptions saved by the defendant; that he waived the petition for mandamus; and waived any exception "taken in his behalf during the testimony or to the charge which, if valid, would result merely in a retrial in the State Court." In this state of the record we shall consider first whether the petition for a writ of error is properly before this court, and if not, then such substantive questions of law as are saved by the bill of exceptions.
A writ of error is an original, independent action and in its origin and nature is distinguishable from appeals and bills of exceptions, which are continuations of the original action. In criminal cases, as distinguished from civil actions, the writ lies notwithstanding there is a remedy by appeal.
Cooke, petitioner, 15 Pick. 234. Thayer v. Commonwealth, 12 Met. 9. Savage v. Gulliver, 4 Mass. 171, 178. Perkins v. Bangs, 206 Mass. 408 , 416. If the case proceeds according to the course of the common law as modified by practice and usage of the Commonwealth, G.
L.c. 250, Section 2, such a writ will lie after a final judgment in a court of record. Cooke, petitioner, supra. ...
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