339 Mass. 154 (1959), Commonwealth v. Sazama

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation339 Mass. 154,158 N.E.2d 313
Date04 May 1959
PartiesCOMMONWEALTH v. George SAZAMA.
Docket Number.

Page 154

339 Mass. 154 (1959)

158 N.E.2d 313

COMMONWEALTH

v.

George SAZAMA.

Supreme Judicial Court of Massachusetts, Franklin.

May 4, 1959

Argued April 6, 1959.

[158 N.E.2d 314] Sanford Keedy, Dist. Atty., Amherst, Oscar Grife, Asst. Dist. Atty., Northampton and Timothy A. Murphy, Greenfield, for commonwealth.

Manuel Katz, Boston (Douglas E. O'Neil, Greenfield, with him), for defendant.

Before WILKINS, C. J., and RONAN, COUNIHAN, WHITTEMORE and CUTTER, Jj.

Page 155

CUTTER, Justice.

Sazama was convicted, under G.L. c. 271, § 7, in a separate trial, of being concerned on January 7, 1957, in the same operation of a pinball machine in a Greenfield tavern considered in Commonwealth v. Butynski, Mass., 158 N.E.2d 310. His bill of exceptions raises certain of the same questions of the admission of evidence considered in the Butynski case, which on those questions is controlling. We consider only the exceptions not thus concluded. These exceptions are based upon the allegedly erroneous admission of certain evidence.

Butynski was manager of the tavern. One Erdeski, a State police officer, went to the tavern on January 7. There he saw Sazama remove from the pinball machine a box half full of nickels, take the box into a back room, return with it empty, replace it in the machine, and lock the machine. Thereafter Erdeski played the machine and was paid off $3 for free games by Butynski, as described in the Butynski case.

On January 8, 1957, two officers talked to Sazama at the Millers Falls Veterans Club about 11:30 A.M. The officers then took Sazama to the Greenfield police station about 1 P.M.

While at the police station, Sazama and Butynski were interrogated together, at a time when it could have been found that neither was under arrest. A Lieutenant McQueen testified that Butynski then told him that 'he and the owner of the machine split the proceeds 50-50,' whereupon Sazama told Butynski to 'keep still.' Subject to Sazama's exception, the trial judge permitted the questions eliciting these answers and refused to strike out the answers. Lieutenant McQueen also testified, subject to Sazama's exception, that Butynski, answering a further question, stated in substance that he and Sazama shared losses [158 N.E.2d 315] equally.

Page 156

At this time, Sazama said to Butynski, '[K]eep your mouth shut; wait till the lawyer gets here.'

Lieutenant McQueen further testified, but apparently without objection or exception by Sazama, that he informed Sazama that he was not under arrest and said to him, 'I am accusing you of a crime, namely conducting a lottery, what do you have to say?' and that Sazama answered, 'I have been advised not to say anything.' A Lieutenant Anderson testified, subject to Sazama's exception, that Butynski said in Sazama's presence that Sazama owned the machine, and that Sazama was asked whether pay-offs were made, but that 'Sazama stated that he refused to say anything on advice of counsel.'

At the time of the arrest Sazama told the arresting officer that he refused to state 'whether * * * [he] was the owner of the machine * * * and that the * * * [officer] should speak to * * * [his, Sazama's] attorney who was then present.' The arresting officer then asked Sazama how he split the proceeds and Sazama replied 'One half to the owner and one half to the operator.' The officer then asked, 'Do you own the machine at the * * * tavern[?]' and Sazama answered that he did. When asked how many he owned, Sazama looked to his attorney, who said 'none,' and Sazama answered 'none.' Sazama excepted to the refusal of the judge to strike the testimony of the conversations just mentioned.

This is not a case where a criminal defendant, either prior to or after arrest, remained completely silent in the presence of a person making accusations against the defendant, concerning matters within the defendant's knowledge, which the defendant heard and understood and which it would have been natural for him to deny. See, as to such cases, Commonwealth v. Kenney, 12 Metc. 235, 237; Commonwealth v. Harvey, 1 Gray 487, 489; Commonwealth v. Boris, 317 Mass. 309, 317-318, 58 N.E.2d 8. If Sazama had definitely denied these statements and accusations, they would have been 'nothing but incompetent hearsay,' clearly inadmissible against him since there was no acquiescence in them on his part. Commonwealth

Page 157

v. Twombly, 319 Mass. 464, 465, 66 N.E.2d 362. See Commonwealth v. Locke, 335 Mass. 106, 115, 138 N.E.2d 359; McCormick, Evidence, § 247; Maguire, Adoptive...

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