Chin Kee v. Com.

• Citation: 235 N.E.2d 787,354 Mass. 156
• Parties: CHIN KEE v. COMMONWEALTH.
• Decision Date: 08 April 1968
• Court: United States State Supreme Judicial Court of Massachusetts

Page 787

235 N.E.2d 787

354 Mass. 156

CHIN KEE v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 4, 1968.

Decided April 8, 1968.

Reuben Goodman, Boston (Robert A. Novick, Boston, with him), for petitioner.

Richard L. Levine, Deputy Asst. Atty. Gen. (Willie J. Davis, Asst. Atty. Gen., with him), for the Commonwealth.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

KIRK, Justice.

This petition for writ of error was reserved and reported without decision by the single justice on the petition, the answer, the assignment of error, the return, and an amended stipulation of facts.

The record shows that on September 13, 1932, Chin Kee was indicted for murder. The then department of mental diseases was given notice as required by G.L. c. 123, § 100A (as amended through St.1929, c. 105), on the same day. On September 14 he was arraigned, pleaded not guilty and requested that counsel be appointed to defend him because he was without funds. On October 5 counsel was appointed. On October 10 the department of mental diseases filed its report as required by the statute.

The case proceeded to trial on October 31, 1932. On November 4 Chin Kee was convicted of first degree murder. On appeal to this court, judgment was ordered to be entered on the verdict. Commonwealth v. Chin Kee, 283 Mass. 248, 186 N.E. 253. The sentence of death was commuted by the Governor to a sentence of imprisonment for life. Some years later the latter sentence was commuted to a sentence of imprisonment from sixty-five years to life.

The major premise of Chin Kee's argument for reversal is the holding of the Supreme Court of the United States in Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. The consequences of a plea at arraignment under the special features of Alabama law were discussed. The Supreme Court determined that arraignment in Alabama was a 'critical stage' at which the advice of counsel was needed to preserve rights which under Alabama law might be forever lost. In the Hamilton case, the court did not decide that counsel at arraignments was indispensable in every State. This was made clear in Stovall v. Denno, Warden, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, where reference was made to the constitutional right to counsel 'at some forms of arraignment, Hamilton v. State of Alabama' (emphasis supplied).

It is important, therefore, that consideration be given to the features of arraignment under Alabama law which led the Supreme Court to characterize the arraignment as a 'critical stage,' and that these features then be compared with arraignment under the law of this Commonwealth. The court pointed out first and foremost that in Alabama (1) '(I)t is * * * (at arraignment) that the defense of insanity must be pleaded * * * or the opportunity is lost. * * * Thereafter that plea may not be made except in the discretion of the trial judge, and his refusal to accept it is 'not revisable' on appeal. * * * (2) Pleas in abatement must also be made at the time of arraignment. (3) It is then that motions to quash based on systematic exclusion of one race from grand juries * * * or on the ground that the grand jury was otherwise improperly drawn * * * must be made' (citations only omitted).

1. We recognize fully the gravity of a stage in criminal procedure that thereafter precludes the defence of insanity which reaches the very heart of criminal responsibility. The fact is, however, that the law of this Commonwealth is diametrically opposite to that of Alabama in that the defence of insanity is not precluded by any plea on arraignment but, on the contrary, is open to the defendant throughout the trial. Insanity is not matter for a special plea. The defence of insanity is open on a plea of not guilty. Under that plea, the sanity of the defendant is placed in issue whenever evidence is offered at the trial tending to show insanity. And in every case where sanity is in issue, the Commonwealth has the burden of proving beyond a reasonable doubt that the defendant is sane. Commonwealth v. Clark, 292 Mass. 409, 415, 198 N.E. 641. Commonwealth v. Cox, 327 Mass. 609, 613, 100 N.E.2d 14.

Furthermore, under the Briggs Law, so called, in capital cases and in the case of certain other persons held for trial, the law itself initiates an inquiry into the mental condition of the accused. ¹ The law in all essential particulars reads now as it did at the time of Chin Kee's indictment (as amended through St.1929, c. 105) and at the time of its first enactment (St.1921, c. 415). The record shows compliance with the statute before Chin Kee's trial. The report signed by two psychiatrists in the department concluded with the statement that Chin Kee 'has no mental disease or defect.' Feature (1) of an Alabama arraignment, therefore, has no parallel in Massachusetts. Chin Kee lost no rights on this aspect of the case at arraignment.

2. Much of the discussion which follows relative to features (2) and (3) will not be applicable to indictments returned or complaints issued after the effective date of G.L. c. 277, § 47A, inserted by St.1965, c. 617, and Rule 101A of the Superior Court, effective December 1, 1964. It is indispensable, however, to consideration of the case before us.

A comparison of features (2) and (3) under Alabama law with corresponding features in Massachusetts law involves differences in nomenclature. It would appear that the roles of a plea in abatement and a motion to quash are respectively reversed in the two jurisdictions. (Feature (3) in quotation above from Hamilton v. State of Alabama.) It is of course the substance and not the name of a pleading that controls and we look at the problem in that light. 'A motion to quash is confined to taking objections to an indictment 'for a formal defect apparent on the face thereof.' G.L. (Ter. Ed.) c. 278, § 17. It is the equivalent of a demurrer.' Commonwealth v. Geagan, 339 Mass. 487, 159 N.E.2d 870. Section 17 provided at the time of Chin Kee's trial: 'An objection to * * * (an) indictment * * * for a formal defect apparent on the face thereof shall be taken by demurrer or by motion to quash, assigning specifically the objections relied on, * * * before a jury has been sworn in the superior court' (emphasis supplied). Under this statute (originally St.1864, c. 250, § 2) a motion to quash was not precluded by a plea made at arraignment whether the defendant was with or without counsel. The statute was applied and discussed in 1865 in Commonwealth v. McGovern, 10 Allen, 193. The court there held that if a motion to quash is filed as prescribed by the statute, it must be heard, and when heard must be decided according to fixed rules of law and if denied an exception would lie. The court declared (p. 195), 'The manifest purpose of this statute was to require formal objections to be taken before putting the Commonwealth to the trouble and expense of a trial on the facts, not to embarrass or take away the right of the defendant to obtain the opinion of the highest court upon any such objection.' The statute has frequently been applied according to its terms. Commonwealth v. Fitchburg R.R., 126 Mass. 472, 474. Commonwealth v. Boston & Maine R.R., 133 Mass. 383, 387--388. Commonwealth v. Schaffner, 146 Mass. 512, 514, 16 N.E. 280. Commonwealth v. Snell, 189 Mass. 12, 16, 19, 75 N.E. 75, 3 L.R.A.,N.S., 1019. Commonwealth v. Wakelin, 230 Mass. 567, 570--571, 120 N.E. 209. Commonwealth v. Hogan 249 Mass. 555, 561, 144 N.E. 390. Commonwealth v. Markarian, 250 Mass. 211, 213, 145 N.E. 305.

Were it not for certain cases cited by Chin Kee, ² we would leave the subject of motions to quash at this point with the conclusion that Chin Kee by his plea in the absence of counsel at arraignment was not deprived of the right to file such a motion thereafter under G.L. c. 278, § 17. These cases must be discussed because they have tended to blur the distinction between the terms 'motion to quash' and 'plea in abatement.' A critical examination of each of these cases, including where necessary an examination of the original papers, shows that they do not support the contention that motions to quash could not be filed without leave of court after plea at arraignment. The first paragraph of the opinion in Commonwealth v. Tucker, 189 Mass. 457, 463, 76 N.E. 127, 128, 7 L.R.A.,N.S., 1056, refers to the 'special plea and the motion to quash.' There were two papers filed, one captioned 'special plea' and the other 'motion to quash.' Each was in fact and in substance a plea in abatement. The court dealt with the two papers for what they were in fact. The true nature of the papers is noted in Lebowitch, petitioner, 235 Mass. 357, 362, 126 N.E. 831. The court did not hold in the Tucker case that a motion to quash must be filed at arraignment nor did it by indirection suggest that St.1864, c. 250, § 2, did not control the substance and timing of a motion to quash. Commonwealth v. Wakelin, 230 Mass. 567, 120 N.E. 209, contrary to Chin Kee's argument, keeps the distinction clear. In the first paragraph of the opinion (p. 570, 120 N.E. 209), dealing with matters in abatement which are waived by plea, motions to quash are conspicuously absent. In the third paragraph of the opinion the motion to quash was specifically dealt with on the merits. Again, in Lebowitch, petitioner, 235 Mass. 357, 362--363, 126 N.E. 831, 832, the same distinction is made: 'The matters set forth are essentially in abatement. * * * A general plea to the indictment admits its genuineness. It is a waiver of matters in abatement' (emphasis supplied). In Commonwealth v. Walsh, 255 Mass. 317, 151 N.E. 300, the paper captioned 'motion to quash' was in fact and substance a plea in abatement since it was addressed, not to formal defects on the face of the indictment but to occurrences (alleged incompetent testimony) in the grand jury room. Although the court disposed of the issue...