Com. v. Baker

• Decision Date: 13 November 1961
• Citation: 343 Mass. 162,177 N.E.2d 783
• Parties: COMMONWEALTH v. John H. BAKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 783

177 N.E.2d 783

343 Mass. 162

COMMONWEALTH v. John H. BAKER.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 5, 1961.

Decided Nov. 13, 1961.

Edmund Dinis, Dist. Atty., New Bedford, and Peter B. Gay, Asst. Dist. Atty., Taunton, for Commonwealth.

George H. Young, Richard Paull, and Solomon Rosenberg, New Bedford, for defendant.

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

SPALDING, Justice.

On June 10, 1961, the defendant shot and killed one Herbert John Straker, Junior, in Westport. The circumstances of the killing need not concern us. Thereafter the defendant was brought before the Second District Court of Bristol on a complaint charging him with murder, and he was arraigned and pleaded not guilty. Following a hearing, the court, on July 10, 1961, found probable cause and ordered the defendant to be held without bail in the county jail to await the action of the grand jury.

Subsequently, the defendant presented a motion to a judge of the Superior Court, presumably under G.L. c. 276, § 57, asking that he be admitted to bail. This motion, after hearing, was denied. The judge made findings of facts and reported the case to this court. G.L. c. 278, § 30A (inserted by St.1954, c. 528) ¹. At the hearing in the Superior Court the defendant presented fifteen requests for rulings which the judge dealt with as follows: 'So far as they are applicable to the facts * * * [found] they are respectively granted.' This cryptic method of dealing with requests is disapproved. See M. DeMatteo Constr. Co. v. Commonwealth, 338 Mass. 568, 585-586, 156 N.E.2d 659. It is often difficult, if not impossible, in such a case to determine which requests were granted or which were refused. See Row v. Home Sav. Bank, 306 Mass. 522, 524-525, 29 N.E.2d 552, 131 A.L.R. 160. In that case, because of the vagueness of the disposition, all the requests were treated as denied. We need not go so far here but much difficulty and confusion could have been avoided if the requests had been dealt with specifically.

The hearing on the motion for bail in the Superior Court, for the most part, appears to have been an attempt to obtain a review of the probable cause hearing in the District Court. A transcript of the evidence in that hearing was introduced, and the defendant presented numerous requests which were designed to elicit rulings on the scope of that hearing, it being the defendant's contention that much evidence was excluded in the District Court which ought to have been admitted. But all of this is in our opinion irrelevant. When the District Court bound the defendant over for the grand jury that court no longer had any jurisdiction over the case. When the motion for bail was presented to the judge of the Superior Court, it did not open up for review by him the proceedings in the District Court. Questions involving the scope of the hearing in the District Court and the admissibility of evidence were not before him. His sole duty was to decide whether the defendant should be admitted to bail. We therefore hold that, irrespective of the proceedings in the Superior Court, the only question brought here by this report is the correctness of the judge's decision in denying the defendant's motion for bail.

Since the complaint was in the statutory form prescribed by G.L. c. 277, § 79, and contained no allegation of murder in the second degree, it charged murder in the first degree. Metcalf v. Commonwealth, 338 Mass. 648, 649, 156 N.E.2d 649; Commonwealth v. Scicchitani, 240 Mass. 402, 404, 134 N.E. 257. The underlying question for decision is whether a person charged with the crime of murder in the first degree, a capital offence, may be admitted to bail. If he may not, that is an end of the matter. If he can be bailed, then it will be necessary to determine whether this is a matter of right or is discretionary.

According to a learned legal historian 'The right to be bailed in certain cases is as old as the law of England itself * * *.' 1 Stephen, History of the Criminal Law of England, 233 (1883). Although there were statutory restrictions on the power of sheriffs and justices of the peace to bail (id. at pp. 234-238), it seems that there never were restrictions on the power to bail of the high courts of England (id. at 243). See Fischer v. Ball, 212 Md. 517, 129 A.2d 822; 4 Blackstone, Commentaries (8th ed.) 298-300; 2 Hale, Pleas of the Crown 129, (1800); Note, 39 L.R.A. (N.S.) 752. Thus, at the time of our Revolution it appears to have been settled in England that inferior courts could not, but that superior courts could in their discretion, admit a prisoner to bail in any case, including murder.

The law of this Commonwealth seems to have developed along similar lines. From early colonial times bail appears to have been allowable in the court's discretion in capital cases and contempts committed in open court, and as a matter of right in all other cases. The 'Body of Liberties' (1641) provided that: '18. No mans person shall be restrained or imprisoned by any Authority whatsoever, before the law hath sentenced him thereto. If he can put in sufficient securitie, bayle or mainprise, for his appearance, and good behaviour in the meane time unlesse it be in Crimes Capital, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.' There is nothing inconsistent with this in St.1783, c. 51, § 1, cited and relied on by the Commonwealth, which prohibited justices of the peace from bailing prisoners in capital cases. This was analogous to the English practice mentioned above, which placed restrictions on the granting of bail in capital cases by inferior tribunals. Contrary to the Commonwealth's contention, this statute cannot be considered as authority for the proposition that capital offences are nonbailable. Moreover, it has never been brought forward in any of the compilations and has long been inoperative. See Rev.Sts. c. 85, § 26. There is another early statutory provision which is relevant. By St.1784, c. 72, § 2, (as amended by the Act of March 16, 1785), which deals with habeas corpus, it was provided that nothing in the act was to be construed to prevent the Supreme Judicial Court 'from bailing any person wherever and for whatever offense committed, at their discretion, whenever the circumstances of the case shall appear to require it.'

The Revised Statutes of 1836 embody the basic structure for our present statutory bail scheme. See §§ 17 and 22 of c. 135, now §§ 42 and 57 of G.L. c. 276. Section 35 of c. 111 retained the power of the Supreme Judicial Court to admit to bail a prisoner 'for whatever cause he may be committed or restrained.' (See now G.L. c. 248, § 25.) We have found nothing in the Revised Statutes which otherwise purported to define bailable offences.

Coming down to the General Statutes of 1860, we find that § 54 of c. 170 provides that the offences of treason, rape, and arson shall not be bailable. Rape and arson were specifically made bailable by St.1871, c. 61, § 1, and this was continued in the Public Statutes of 1882 (Pub.Sts. c. 212, § 72), which provided only that treason was to be nonbailable. This last provision reappeared in R.L. c. 206, § 1 (1902), and now is embodied in G.L. c. 264, § 1. Thus, as far as statutory law is concerned, there seems to be no basis for holding that murder is a nonbailable offence. There are no statutory restrictions in our present law analogous to St.1783, c. 51, § 1, discussed above. Neither §§ 42 or 57 of G.L. c. 276, which governs the subject of bail generally, nor §§ 19-21 of c. 248 (habeas corpus) define nonbailable offences.

Our case law on this subject is extremely meager. In Dunlap v. Bartlett, 10 Gray, 282, a per curiam opinion, a prisoner who had seriously wounded another had been denied bail in a police court. On habeas corpus this court ordered the prisoner admitted to bail, saying, 'This party not being held for a capital offence, nor it appearing that he ever will be, it is a case for bail.' This, perhaps, is an intimation that capital cases were nonbailable, but no authority was cited in support of the statement. The very brief statement (apparently by the reporter) in Commonwealth v. Trask, 15 Mass. 277, tends in this direction. But in both cases it is not improbable that the court meant only that in capital cases bail was not a matter of right.

Our examination of the law existing elsewhere reveals that murder appears to be a bailable offence in the discretion of the courts in England (see Rex v. Phillips, [1947] 32 Cr.App.R. 47); in Australia (see Rex v. Light, [1954] Vict.L.R. 152, 154); and in the Federal courts (Rule 46[a] of the Federal Rules of Criminal...