Aronson v. Com.

• Citation: 121 N.E.2d 669,331 Mass. 599
• Parties: Jacob ARONSON v. COMMONWEALTH.
• Decision Date: 20 September 1954
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 669

121 N.E.2d 669

331 Mass. 599

Jacob ARONSON v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 5, 1954.

Decided Sept. 20, 1954.

George Alpert, Boston (Arthur L. Brown, Boston, with him), for petitioner.

Frederick T. Doyle, Asst. Dist. Atty., Boston (Jason A. Aisner, Asst. Atty. Gen.), for Commonwealth.

Before QUA, C. J., and WILKINS, SPALDING and COUNIHAN, JJ.

QUA, Chief Justice.

The petitioner excepts to an order of the single justice entered December 29, 1953, refusing to issue a writ of error looking to the reversal of a sentence to the State prison imposed upon the petitioner in the Superior Court on October 24, 1951, for the crime of unlawfully using an instrument on the body of a woman named Pitts for the purpose of procuring her miscarriage. G.L.(Ter.Ed.) c. 272, § 19.

The error assigned, reduced to its lowest terms, is that at the trial of the present petitioner, Pitts testified in effect that the petitioner told her that an abortion would cost her $325, that, having sterilized surgical instruments, he used something in her private parts which produced a scraping sensation, that after that he gave her an injection of penicillin, and that she paid him $325 'as agreed'; but that on November 20, 1952, over a year after the sentence, she testified under oath before the board of registration in medicine that, believing she was pregnant, she asked to see the petitioner for an examination, that he examined her and told her that she was not pregnant, that she knew nothing about any instruments, that he gave her penicillin 'for her condition,' that she did not go to him for an abortion, and that she did not pay him any money. When asked before the board 'whether she had been pressured by the police into telling the story that she had testified to [in court], she stated that it had been jammed down her throat.' In other words, the error is supposed to be that more than a year after the end of the trial, and therefore when it was too late to move for a new trial under G.L. (Ter.Ed.) c. 278, § 29, as appearing in St.1939, c. 271, § 1, Snyder, Petitioner, 284 Mass. 367, 370, 187 N.E. 775, a principal witness against the petitioner recanted and contradicted her testimony given at the trial. The 'error' is that the verdict of the jury might have been wrong on the facts.

The petitioner was indicted for a felony and was tried subject to the provisions of G.L. (Ter.Ed.) c. 278, §§ 33A-33G. ¹ Under those sections he had, of course, a full trial in the Superior Court at which he could cross-examine and impeach all witnesses against him and introduce any competent evidence in his own favor. He had a right of appeal to this court on all questions of law upon the full transcript of the evidence, and he exercised that right, Commonwealth v. Aronson, 330 Mass. 453, 115 N.E.2d 362. Whether in addition he should be allowed to sue out a writ of error has been made by statute discretionary with a single justice of this court. G.L.(Ter.Ed.) c. 250, § 11. Commonwealth v. Sacco, 261 Mass. 12, 16-17, 158 N.E. 167. The sole question before us is therefore whether the refusal to issue the writ was an abuse of discretion. McGarty v. Commonwealth, 326 Mass. 413, 414-415, 95 N.E.2d 158, certiorari denied, 340 U.S. 886, 71 S.Ct. 199, 95 L.Ed. 643.

The refusal of the writ was not an abuse of discretion for the reason, if for no other, that as matter of law the writ would have been futile if it had been issued.

It is well settled that the errors of fact that can be corrected upon writ of error either in civil cases under c. 250, § 3, or in criminal cases under § 9 do not include possible errors in the determination of facts at a trial. As was said in Blankenburg v. Commonwealth, 260 Mass. 369, 376-377, 157 N.E. 693, 697, they refer to 'matters of a different nature, such as minority of the defendant, Johnson v. Waterhouse, 152 Mass. 585, 26 N.E. 234, 11 L.R.A. 440; insanity of the defendant, Hathaway v. Clark, 7 Pick. 145; and death of the defendant and lack of authority of a purported agent to accept service, Hanzes v. Flavio, 234 Mass. 320, 327-328, 125 N.E. 612; that is to say, to matters of fact not heard and decided at the trial under review.' To the foregoing instances there have been added in recent years instances where the contention was made that the defendant had been wrongfully deprived of the assistance of counsel at the trial or was denied opportunity to prepare a defence. Allen v. Commonwealth, 324 Mass. 558, 87 N.E.2d 192; Lindsey v. Commonwealth, 331 Mass. ----, 116 N.E.2d 691; Jones v. Commonwealth, 331 Mass. ----, 117 N.E.2d 820. Those additions were made upon the same theory as that of the older cases, to wit, that issues of fact are not concluded by the trial where there was no legally sufficient opportunity to litigate them at the trial. The general rule that findings of fact at a trial cannot be reviewed on writ of error is illustrated by serveral decisions cited in Blankenburg v. Commonwealth, 260 Mass. 369, at page 376, 157 N.E. 693, and by such cases as Pratt v. Bidwell, 175 Mass. 453, 56 N.E. 707; Commercial Credit Corp. v. Flowers, 282 Mass. 316, 320, 185 N.E. 30; MacEachern v. S. S. White Dental Mfg. Co., 304 Mass. 419, 23 N.E.2d 1020; Silverton v. Commonwealth, 314 Mass. 52, 49 N.E.2d 439, 154 A.L.R. 1223, and Albano v. Commonwealth, 315 Mass. 531, 534, 53 N.E.2d 690. As Chief Justice Shaw said in Riley v. Waugh, 8 Cush. 220, at page 222, 'Were it otherwise, it would always be competent for a party, against whom judgment is rendered to sue out a writ of error, and assign for error, that the facts on which the judgment proceeded were not true, and thus obtain a new trial.' We may add that the scope of the writ of error under the provisions of c. 250 is not enlarged by anything contained in c. 211, § 3. Dolan v. Commonwealth, 304 Mass. 325, 332-333, 23 N.E.2d 904.

But the petitioner seeks to go farther and to invoke the principle that there is a...