Brown v. Com.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before WILKINS; WILKINS
• Citation: 335 Mass. 476,140 N.E.2d 461
• Decision Date: 27 February 1957
• Parties: Ivan W. BROWN v. COMMONWEALTH.

Page 461

140 N.E.2d 461 335 Mass. 476 Ivan W. BROWN
v.
COMMONWEALTH. Supreme Judicial Court of Massachusetts, Suffolk. Argued Jan. 8, 1957.
Decided Feb. 27, 1957.

[335 Mass. 477]

Page 462

Edward J. Barshak, Boston, for Brown.

La Rue Brown, Boston, Mark D. Howe, Cambridge, amici curiae.

Samuel W. Gaffer, Asst. Atty. Gen., for the Commonwealth.

Before [335 Mass. 476] WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

[335 Mass. 477] WILKINS, Chief Justice.

The plaintiff in error, whom we shall call the peitioner, is serving three sentences of not exceeding seven nor less than five years, which were imposed in the Superior Court for Middlesex County on May 13, 1952. One indictment was for assault and battery by means of a dangerous weapon. Two indictment, one of which contained two counts, were for robbery while armed. All the indictments arose out of three taxicab operator robberies committed by a passenger on April 7, 18, and 21, 1952.

On February 7, 1956, the petitioner sued out a writ of error in this court, assigning as error that he, an indigent person, was tried in violation of his rights (1) under art. 12 of the Declaration of Rights of the Constitution of Massachusetts in that the trial judge failed to determine the need of counsel and to fulfill that need by assigning counsel; and (2) under the Fourteenth Amendment to the Constitution of the United States by reason of the conduct of the trial. [335 Mass. 478] G.L.(Ter.Ed.) c. 250, § 9. The single justice reserved and reported the case without decision upon the petition, assignments of error, the return, the answer, and his findings of fact.

The facts appear in the single justice's findings. The petitioner was born in New Hampshire and was twenty-two years of age at the time of the trial. His father died when he was two years of age. When he was three or four years of age his mother became ill and he 'went to an institution for a time.' Thereafter he was in a foster home for two or three years and in an orphanage for about five years. When he was about thirteen years of age, following a court appearance, he was sent to an industrial school where he remained for about five years until 1947. He attended school through the sixth grade.

The petitioner had 'various duties' in the army air force, serving overseas eighteen months, and was once brought before a 'one-officer court,' but no testimony was

Page 463

taken. In 1950 he pleaded guilty in Barnstable County to a charge of unauthorized use of motor vehicle. There was no trial. Because of this incident he received an 'undesirable discharge' from the army.

Later the petitioner married, and 'held several jobs,' living in Michigan and on Cape Cod. In Michigan he pleaded guilty to a charge of using profane language, but up to the time of the trial of these three indictments he had not been in court while a full trial occurred.

Prior to judgment the petitioner did not know that there was a provision of law for the summoning of witnesses at the expense of the Commonwealth, ¹ 'or of any of the other rights or privileges asserted in the assignments of error.' In 1952 he knew of two possible witnesses who at the time of the hearing before the single justice he believed would have been available to support an alibi for two of the three armed robbery charges. One of them testified at a later trial in Suffolk County in which he was represented by counsel.

[335 Mass. 479] The applicable rule under art. 12 of the Declaration of Rights is stated in Pugliese v. Commonwealth, Mass., 140 N.E.2d 476, in reliance upon Allen v. Commonwealth, 324 Mass. 558, 562, 87 N.E.2d 192, 195. There is a requirement of 'assignment of counsel in noncapital cases only when the defendant, by reason of youth, inexperience or incapacity of some kind, or by reason of some unfair conduct by the public authorities, or of complication of issues, or of some special prejudice or disadvantage, stands in need of counsel in order to secure the fundamentals of a fair trial.'

We must first take up a contention of the Commonwealth that the single justice erred in admitting in evidence and in considering the transcript of the trial proceedings. Reliance is placed upon the undoubted general rule that findings of fact at a trial cannot be reivewed on writ of error, which is confined to matters of fact not heard and decided at the trial under review. In Blankenburg v. Commonwealth, 260 Mass. 369, 376, 157 N.E. 693, Chief Justice Rugg, after stating the general principle, listed three examples of matters of fact which could be reviewed: 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, 125 N.E. 612. '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...