Berlandi v. Commonwealth

• Decision Date: 15 July 1943
• Citation: 314 Mass. 424,50 N.E.2d 210
• Parties: BERLANDI v. COMMONWEALTH. WALKINS v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

314 Mass. 424

50 N.E.2d 210

BERLANDI

v.COMMONWEALTH.

WALKINS

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

July 15, 1943.

Error to Supreme Judicial Court, Suffolk County.

Angelo V. Berlandi and by Harold J. Walkins were convicted of criminal contempt, and they bring error. On hearing before a single justice, the judgments were ordered affirmed, and thereafter the single justice reported each case for determination of the full court.

Affirmed.

Before FIELD, C. J., and DONAHUE, DOLAN, and RONAN, JJ.

J. E. Hanningan and E. M. McMahon, both of Boston, for Walkins.

A. F. Bickford and J. S. Dawson, both of Boston, for Berlandi.

J. Lewiton, Asst. Atty. Gen., for the Commonwealth.

FIELD, Chief Justice.

There are two petitions for writs of error brought in the Supreme Judicial Court, each of them to review a judgment for criminal contempt against the petitioner in the Municipal Court of the City of Boston whereby the petitioner was sentenced to punishment for such contempt. The petitioners are respectively Angelo V. Berlandi and Harold J. Walkins. The petitions were heard together by a justice of this court sitting as a single justice. In each case he made rulings of law and ordered the judgment affirmed. At the request of the petitioner in each case the single justice reported the case and the questions of law involved therein for the determination of the full court. It was agreed by the parties-and this agreement was approved by the court-that the ‘papers in the Berlandi case are to be printed and wherever a difference in substance or material difference in form occurs in the Walkins case, the companion case, those portions of the Walkins case will be printed in full and indicated by italics. Portions of the record indicated as appearing in assignments or other pleadings or documents filed by or in behalf of one petitioner but not in those filed by or in behalf of the other petitioner shall be considered only as to the petitioner in whose case they were included.’

The cases, in accordance with established practice, were heard by a single justice upon the petitions of the respective petitioners, incorporating the petitioners' assignments of error, and the returns as extended of the Chief Justice of the Municipal Court of the City of Boston. The practice in such cases was recently considered in Dolan v. Commonwealth, 304 Mass. 325, 23 N.E.2d 904, 907, where reference was made to previous cases. The discussion need not be repeated here in detail. In accordance with the decision in that case, supported by the authority of previous cases, a sentence to punishment for a criminal contempt is a ‘judgment in a criminal case’ that, under G.L. (Ter.Ed.) c. 250, § 9, may be reviewed on writ of error subject to the ordinary limitations upon review by writ of error. Such a review, except for matters not here material, is of matters of law apparent on the record of the court in which the judgment was entered as disclosed by the return. 304 Mass. at pages 331-336, 23 N.E.2d 904.

The petitioners arrange their assignments of error for the purpose of argument in seven different groups, some of the assignments of error being included in more than one group. The propositions of law argued will be treated in accordance with this grouping of assignments of error, and the material facts will be stated in connection with the discussion of the principles of law arising upon such facts respectively.

First. The petitioners contend that the ‘Municipal Court lacked jurisdiction to convict the defendants [the petitioners here] Walkins and Berlandi.’

These facts bearing upon this contention appear from the record of the Municipal Court as disclosed by the returns: One Alfred A. Berlandi-sometimes described in the decision of the Chief Justice of the Municipal Court and in this opinion as ‘Freddy’-was complained against, in the Municipal Court of the City of Boston, for larceny from the person-the larceny of a hand bag from one O'Donnell. On Monday, March 18, 1940, he was arraigned in the first criminal session of that court before the Chief Justice thereof. When the case was reached for trial before the Chief Justice, a motion for a continuance was denied by him and the case was tried by him. The defendant was found guilty and sentenced to the house of correction for three months. The defendant appealed and the Chief Justice set bail at $1,500 which was furnished. These proceedings took place on March 18, 1940. On Wednesday, March 20, 1940, one Carmen Giordano was complained against in the Municipal Court of the City of Boston for larceny of a hand bag, was arraigned before the Chief Justice and pleaded guilty. (It is apparent from the record that the complaint against Alfred A. Berlandi and that against Carmen Giordano related to the same hand bag.) The Chief Justice declined jurisdiction and held the defendant in $500 bail for the grand jury. He furnished bail. This defendant was indicted by the grand jury, and on April 17 and 18, 1940, his case and that of Alfred A. Berlandi, on appeal, were tried together in the Superior Court before a judge and a jury. Alfred A. Berlandi was convicted and sentenced to three months in the house of correction. At the close of the evidence Giordano pleaded guilty and was placed on probation with a suspended sentence of three months in the house of correction.

An assistant district attorney filed complaints in the Municipal Court on May 17, 1940, against the present petitioners, and also against Alfred A. Berlandi and Carmen Giordano, charging each of them with criminal contempt in connection with the cases of Alfred A. Berlandi and Carmen Giordano. The complaint against each of the petitioners, after alleging facts in considerable detail, alleged that the conduct of each of them respectively ‘as hereinbefore set forth tended to interfere with, impede and obstruct the proper administration of justice and constituted contempt of this Honorable Court.’ Process was duly issued and served upon each of the four persons charged with criminal contempt to bring him before the court. Each of the petitioners and Alfred A. Berlandi pleaded not guilty. Giordano pleaded guilty. After a hearing before the Chief Justice of the Municipal Court on July 30, 1940, he found the petitioners and Alfred A. Berlandi guilty of contempt, and sentenced each of the four persons complained against to be confined in the common jail-in the case of the petitioner Walkins for six months, and of the petitioner Berlandi for nine months. Though the decision of the Chief Justice set forth in the record related to all four persons charged with criminal contempt, the present petitions relate only to the convictions for contempt of Angelo V. Berlandi and Walkins, respectively.

The Chief Justice-as appears from his decision incorporated in the record of the Municipal Court-found specific facts with respect to the conduct of the four persons charged with criminal contempt before and after the conviction of Alfred A. Berlandi. With respect to the conduct of the petitioner Walkins, the Chief Justice found, among others, the following facts: ‘Sometime * * * on the forenoon of Tuesday, March 19, Walkins came into the first criminal session of the Municipal Court while I was sitting on the bench. He would have me believe that he did not then know the strength of the Commonwealth's case against Freddy. I do not so believe. I find that he had every reason to believe, and did then believe, that Freddy was guilty. He secured my attention during some interval between trials and represented to me that another man had confessed to the larceny of which I had found Freddy guilty on the day before and asked me to allow Freddy to withdraw his appeal and to revoke my finding of guilty. This he himself admits having done. He then said something further to me. He testified that what he said further was to ask me to continue Freddy's case so that it might be tried with the case of the other man who had confessed. My own recollection of what he further asked me was that he wanted me to dismiss the case against Freddy.’ The Chief Justice found further that the four persons charged with criminal contempt ‘conspired and attempted to obstruct and impede the administration of justice in this court by trying to secure, through action on my part, the freedom of the defendant Alfred A. Berlandi, a guilty man and known to them to be guilty, in the manner hereinabove described [in the decision], and that they are guilty of contempt. The fact that their said conspiracy and attempt to secure said freedom was unsuccessful makes no difference.’ Further findings with respect to the conduct of the petitioner Walkins and the conduct of the petitioner Berlandi in connection with the conduct of the petitioner Walkins will be stated so far as essential in the course of the discussion of other contentions of the petitioners.

1. The contention of the petitioners that the Municipal Court lacked jurisdiction to convict the petitioners is based, in part, on the contention that, at the time the petitioner Walkins made the representations to the Chief Justice and the request of him herein referred to with respect to Alfred A. Berlandi, the case against said Berlandi was not ‘pending’ for action in the Municipal Court.

The single justice of this court ruled against the contention that the Municipal Court was without jurisdiction on this ground. This ruling was right.

This contention of the petitioners has a twofold aspect: (a) that the acts of the petitioner Walkins for which he was convicted for criminal contempt, and for connection with which the petitioner Berlandi was so convicted, having been performed after Alfred A. Berlandi was convicted upon the complaint against him for larceny and had appealed to the Superior Court, were performed too late for the Municipal Court to have jurisdiction to punish therefor, and (b) that these acts, having been performed after the...