Com. v. Agiasottelis

• Decision Date: 06 May 1957
• Citation: 142 N.E.2d 386,336 Mass. 12
• Parties: COMMONWEALTH v. Geroge W. AGIASOTTELIS (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 386

142 N.E.2d 386

336 Mass. 12

COMMONWEALTH v. Geroge W. AGIASOTTELIS (two cases).

Supreme Judicial Court of Massachusetts, Norfolk.

Argued April 2, 1957.

Decided May 6, 1957.

J. Blake Thaxter, Jr., Asst. Dist. Atty., Cohasset, Edward H. Libertine, Asst. Dist. Atty., Quincy, for the Commonwealth.

Leonard Mullen, Jr., Malden, for defendant.

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and CUTTER, JJ.

CUTTER, Justice.

The defendant was found guilty upon indictments charging him with robbery while armed (G.L. [Ter.Ed.] c. 265, § 17, as appearing in St.1952, c. 406, § 1) and with larceny of an automobile (G.L. [Ter.Ed.] c. 266, § 28). The trial was subject to the provisions of G.L. (Ter.Ed.) c. 278, §§ 33A-33G, inclusive. The cases are here upon the defendant's appeals, a summary of the record, a transcript of the testimony, and various assignments of error, and were submitted on briefs.

The first five assignments of error cannot in any real sense be said to have been argued (within the meaning of Rule 13 of the Rules for the Regulation of Practice before the Full Court [1952], 328 Mass. 698) in the defendant's brief. In effect, the assignments of error are merely restated in the brief without amplification or any citation of authorities. The transcript of the evidence, however, has been carefully examined. Even if it be assumed that the first five assignments have been argued, there is no merit in any of them.

Assignment 1. It is assigned as error that testimony of one Tupper was admitted to the effect that, 'as a result of' a conversation he had with a third person, he did certain things. The witness was not permitted to give the details of any conversation and the testimony was not prejudicial. Commonwealth v. Moulton, 4 Gray, 39, 40; Commonwealth v. Feci, 235 Mass. 562, 567, 127 N.E. 602, and cases cited. See Sampson v. Sampson, 223 Mass. 451, 458-459, 112 N.E. 84; Freeman v. Freeman, 238 Mass. 150, 161, 130 N.E. 220.

Assignment 2. It is assigned as error that the trial judge admitted in evidence certain locks from an abandoned stolen automobile, which the jury could have found had been used in the bank robbery here under discussion. A key found on the defendant after he was captured fitted the locks. This sufficiently linked the locks with the defendant.

Assignment 3. A nurse, qualified as an expert, who treated the defendant in the hospital, after he was captured, was permitted to testify that morphine would not be given to an unconscious patient. There was testimony that the defendant was given morphine. The testimony was relevant in corroboration of the nurse's testimony that the defendant was conscious at the time of the injection near the time when, according to the testimony, he refused to give his name and address, in itself some indication of consciousness of guilt.

Assignment 4. Exception was taken to the reopening of the cases, after the Commonwealth and the defendant had rested, to receive further evidence (not merely in rebuttal of other testimony) offered by the Commonwealth. This was within the trial judge's discretion. Commonwealth v. Wood, 302 Mass. 265, 267-268, 19 N.E.2d 320, and cases cited; Commonwealth v. Cataldo, 326 Mass. 373, 377, 94 N.E.2d 761.

Assignment 5. This assignment relates to the refusal of the trial judge to direct verdicts of not guilty for the defendant. There was evidence from which the jury could find the following facts beyond a reasonable doubt. Three men robbed a Quincy bank of a substantial sum of money, by threat of arms, on the morning of May 11, 1956, and escaped in a stolen green automobile bearing license plate numbered 800,672. The defendant was captured that morning, very shortly after the robbery. He was shot by a police officer while trying to escape across a nearby golf course on the golf club's motor tractor, which the defendant had wrongfully taken. When captured, the defendant made certain statements which could be construed as admissions or as indicating consciousness of guilt. He also (a) had on his person a key which fitted the locks on the green automobile bearing license plate 800,672, found abandoned not far from the golf course, and (b) was wearing garments and other articles like those worn by one of the bank robbers of similar stature and appearance. The verdicts were clearly warranted by the evidence.

Assignment 6. This assignment relates to the trial judge's refusal to give certain instructions. Requested instruction numbered 1 related to the presumption of innocence. The instructions given by the trial judge on this point, in words approved in Commonwealth v. De Francesco, 248 Mass. 9, 13, 142 N.E. 749, 34 A.L.R. 937 (see Commonwealth v. Venuti, 315 Mass. 255, 259-260, 52 N.E.2d 392), were sufficiently favorable to the defendant under our decisions. Commonewalth v. Barber, 261 Mass. 281, 290-291, 158 N.E. 840. Commonwealth v. Devlin, 335 Mass. ----, 141 N.E.2d 269. Other requested instructions directed to the quantity of proof required in criminal cases of this character were adequately covered, to the extent that they were appropriate, by the judge's very clear charge on the whole subject of proof beyond a reasonable doubt where the evidence was circumstantial. See Commonwealth v. Goodwin, 14 Gray, 55, 56-57; Commonwealth v. Russ, 232 Mass. 58, 68, 122 N.E. 176; Commonwealth v. Grieco, 323 Mass. 639, 642, 83 N.E.2d 873. See also Commonwealth v. Connolly, 308 Mass. 481, 497, 33 N.E.2d 303; Commonwealth v. Farrell, 322 Mass. 606, 619-620, 78 N.E.2d 697.

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