Berlandi v. Commonwealth

Decision Date15 July 1943
Citation314 Mass. 424,50 N.E.2d 210
PartiesANGELO V. BERLANDI v. COMMONWEALTH (and a companion case [1]).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

May 19, 1941.

Present: FIELD, C.


Contempt. District Court, Jurisdiction.

Conspiracy. Error Writ of. Practice. Criminal, Contempt proceedings, View. Constitutional Law, Due process of law, Impartial tribunal. Error, Whether error harmful.

A sentence for a criminal contempt is a "judgment in a criminal case" which may be reviewed by writ of error under G. L (Ter. Ed.) c. 250, Section


A prosecution for larceny in a District Court, after conviction and appeal to the Superior Court, remained pending in the District Court to an extent sufficient to give that court jurisdiction to adjudge in contempt one who then attempted improperly to influence the presiding judge to dismiss the case and discharge the defendant if the appeal were withdrawn.

The mere fact that a conspiracy was an element leading up to an attempt to obstruct the administration of justice in a District Court did not preclude that court from punishing such conduct as contempt although it had no jurisdiction to punish a conspiracy as an independent criminal offence.

Rulings as to admission of evidence at the trial of a criminal contempt proceeding, assigned as errors in a petition for a writ of error to review the judgment of contempt but not set forth in the return to the writ filed with a plea in nullo est erratum, were not subject to review.

A judge of a District Court who had heard a larceny case committed no error in himself also hearing on the merits a complaint for contempt against one who, pursuant to a conspiracy with others, by misrepresentations to the judge attempted improperly to influence him to act in a certain manner in the larceny case, or in refusing in the contempt proceeding to submit to cross-examination upon an issue of fact as to a conversation with the alleged contemnor in which such misrepresentations were made.

A judge of a District Court, hearing on the merits a complaint for contempt, may take a view. No prejudicial error appeared in the conduct of a judge of a District

Court, in that after the conclusion of the formal hearing on the merits of a complaint for contempt of court, he took a view without the consent, knowledge, or presence of the defendant or his counsel, where it appeared that what the judge saw on the view did not in any way affect his decision.

A judge of a District Court was not disqualified on the ground of partiality from himself hearing on the merits a complaint for contempt of court committed in seeking to obstruct justice through misrepresentations made to him.

Both a police officer and a brother of one, known to both to have been justly convicted of larceny by a judge of a District Court, were guilty of contempt of court where, pursuant to a conspiracy on their part to obstruct justice by procuring a third person to "take the rap" and by fraudulently securing a release of the convicted man, the police officer truly stated to the judge that the third person had pleaded guilty to the larceny charge but impliedly misrepresented to the judge that he believed the convicted man innocent and sought to induce the judge to take action resulting in his release; the fact that the conspiracy and attempt to obstruct justice were unsuccessful was immaterial.

Both of two conspirators, fraudulently seeking to obstruct justice, were guilty of contempt of court although overt acts were committed by only one of them.

Dishonest and fraudulent communications with a trial judge in an effort to obstruct justice were not less contempt of court because they were made as a favor to a friend.

PETITIONS for writs of error, filed in the Supreme Judicial Court for the county of Suffolk on July 30, 1940.

Pursuant to the petitions, writs issued to the Chief Justice of the Municipal Court of the City of Boston on July 30, 1940. The defendant in error pleaded in nullo est erratum.

The cases were heard by Lummus, J. In his return, the Chief Justice of the Municipal Court of the City of Boston, with respect to the phrase, "take the rap," stated: "To `take the rap' is a phrase well known in criminal and police circles. The process of `taking the rap' may take different forms, but in substance it often consists of someone who is interested in the freeing of a given prisoner persuading some other person to come into court, or into the hands of the police, and confess (usually untruthfully) to the commission of the crime, in the hope that the person under arrest will be set at liberty. Normally the person in custody has a bad criminal record, and the person who comes in to `take the rap' has no criminal record and may therefore reasonably expect to be given a light sentence or be placed upon probation as a first offender."

J. E. Hannigan, (E.

M. McMahon with him,) for Walkins.

A. F. Bickford, (J.

S. Dawson with him,) for Berlandi.

J. Lewiton, Assistant Attorney General, for the Commonwealth.

FIELD, C.J. These 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 , 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, Section 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. Pages 331-336.

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...

To continue reading

Request your trial
4 cases
  • Berlandi v. Commonwealth
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 15, 1943
  • Commonwealth v. Bellino
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 3, 1947
    ...v. Morrison, 252 Mass. 116, 125, 147 N.E. 588;Commonwealth v. Capalbo, 308 Mass. 376, 381, 382, 32 N.E.2d 225;Berlandi v. Commonwealth, 314 Mass. 424, 452, 50 N.E.2d 210;Shea v. D. & N. Motor Transportation Co., 316 Mass. 553, 555, 55 N.E.2d 950, and cases cited. There is nothing in the cas......
  • Commonwealth v. Bellino
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 8, 1947
    ... ... should not be considered by" the jury. Commonwealth ... v. Ham, 150 Mass. 122 , 124. Commonwealth v ... Cline, 213 Mass. 225 , 227. Commonwealth v ... Morrison, 252 Mass. 116 , 125. Commonwealth v ... Capalbo, 308 Mass. 376, 381-382. Berlandi v ... Commonwealth, 314 Mass. 424 , 452. Shea v. D. & N ... Motor Transportation Co. 316 Mass. 553 , 555, and cases ... cited. There is nothing in the case to suggest that the jury ... did not follow this instruction. We find no error in the ... denial of the motion to declare a mistrial ... ...
  • Com. v. Aronson
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • October 29, 1953
    ...that part of the hospital record relating to history, and the jury must be assumed to have obeyed the instruction. Berlandi v. Commonwealth, 314 Mass. 424, 452, 50 N.E.2d 210; Commonwealth v. O'Toole, 326 Mass. 35, 39, 92 N.E.2d There was no error in admitting the opinion of an expert physi......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT