Com. v. Banuchi
| Decision Date | 05 April 1957 |
| Citation | 141 N.E.2d 835,335 Mass. 649 |
| Parties | COMMONWEALTH v. Angelo BANUCHI (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Francis J. Hickey, Asst. Dist. Atty., Anthony J. Young, Asst. Dist. Atty., So. Boston, for the Commonwealth.
Thomas E. Dwyer, Boston, George A. Brown, Manchester, for defendant.
Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and CUTTER, JJ.
On December 16, 1954, the grand jury for Suffolk County returned three indictments against the defendant, the first charging him with wilfully and maliciously setting fire to and causing to be burned a dwelling house; the second charging him with an assault with intent to murder one Gertrude Guarino; and the third charging him with the murder of one Paul Yee.
The defendant pleaded not guilty to each of these indictments and they were tried together before a jury on October 24, 1955. The trial was subject to G.L. (Ter.Ed.) c. 278, §§ 33A-33G, as amended. The jury returned a verdict of guilty on the first indictment, a verdict of guilty of murder in the second degree on the third indictment, and a verdict of not guilty on the second indictment. Thereafter the judge imposed a sentence of life imprisonment on the third indictment and a sentence of eighteen to twenty years on the first indictment to be served concurrently with the sentence of life imprisonment.
The cases came here upon the defendant's appeals accompanied by thirteen assignments of error relating to exceptions taken at the trial, and a transcript of the evidence. G.L.(Ter.Ed.) c. 278, §§ 33A-33G, as amended
The evidence may be summarized as follows: On Sunday, October 24, 1954, at about 9 P.M. a fire occurred in a five story dwelling house numbered 10 Davis Street in the South End section of Boston. A separate family occupied each floor of this building. One Pasquale Guarino and his wife Gertrude lived on the second floor. The deceased Paul Yee, a child about three years old, lived with his parents and their four other children on the third floor. Paul Yee died as a result of smoke inhalation and burns sustained in the fire.
The defendant was friendly with Guarino and had lived with him and his wfie for several weeks in the summer preceding the time of the fire. Guarino and his wife quarreled frequently and she left him four or five days before the fire and did not return until the morning of the day of the fire. During her absence the defendant spent most of his time with Guarino and they did considerable drinking. The defendant came to the Guarino apartment early Sunday evening. Guarino and his wife were drunk when he got there and after the defendant joined them he consumed more than three quarts of wine. The defendant left them about 8:45 P.M.
Both Guarino and his wife were overcome by smoke and the fumes of the fire and were taken to the Boston City Hospital.
During the height of the fire the defendant was discovered climbing up a fire ladder and breaking a window on the second floor. He was removed by the firemen and sent to the city hospital for treatment of a cut hand. He refused treatment there and later he returned to the scene of the fire. He was recognized as the one who had earlier been seen climbing the ladder and he was arrested for interfering with the firemen.
As he was being booked at the police station shortly before midnight he was accused by Sergeant Murphy, a police officer, of having set the fire. He denied this and accused Guarino of having done it. He was then locked up on suspicion of having committed arson. About midnight he was taken by Sergeant Murphy and several other officers to the city hospital where he identified Guarino who was then semiconscious. Upon his return to the police station he was questioned in the guard room at about 1 A.M. Monday by the sergeant in the presence of some officers, one of whom took down on a typewriter the questions of the sergeant and the answers of the defendant. Thereafter the defendant signed this typewritten statement which included a statement that what he said was of his own free will and without duress. In this talk with the sergeant he said that Guarino wanted to get rid of his wife and that Guarino had tipped over a five gallon can of range oil near the stairs on the first floor and had thrown a lighted match into it.
On Monday at about 10 A.M. Lieutenant Monahan of the homicide division of the police department talked with the defendant at the station house in the presence of several policemen and fireman. One Burke, an official stenographer of the police department, took down the conversation. In this talk the defendant said that what he told Sergeant Murphy about Guarino setting the fire was 'phony,' that he did not see Guarion set the fire, and that he only said that because he was tired and hungry.
At about 4:55 A.M. on Tuesday the defendant called in Lieutenant Enos who was then in charge of the station and told him that he wanted to talk about the case about which he was in trouble. As a result the lieutenant sent Sergeant Mullally in to talk with the defendant. He was accompanied by another sergeant. At that time the defendant told Sergeant Mullally that Guarino wanted to get rid of his wife so that he could go back to Italy where he had property. Guarino asked the defendant to set the fire and told him that when he got back to Italy he would send for him and give him some of his property. Guarino said that his wife was so drunk she would not be able to escape from the fire. Guarino then gave the defendant a five gallon can of range oil to put on the stairway. The defendant said that he took the oil, went down to the first floor and at the foot of the stairs he turned the can over and let the oil run out. He soaked his handkerchief in oil, lighted it and dropped it into the oil on the floor and the fire started. Subsequently the sergeant took the defendant to the guard room upstairs and called in two patrolmen one of whom, O'Neil, took down in longhand the interrogation of the defendant which the sergeant conducted. Later O'Neil transcribed his longhand notes on a typewriter and the defendant after reading the typewritten statement signed it. This statement was substantially the same as that which he had given Sergeant Mullally in the cell block. He added that he and Guarino had been discussing the plan the week previous when he and Guarino had been drinking excessively.
On Tuesday at about 9:30 A.M. Lieutenant Monahan again talked with the defendant at the station house and Burke took stenographic notes of the conversation. The defendant verified the statement which he had made to Sergeant Mullally earlier that morning. He added many details and said that he made the earlier statements because he did not want to 'hold the bag.' At the conclusion of this interview Lieutenant Monahan took the defendant to the city hospital where he confronted Guarino and repeated his story. Guarino denied all of his accusations.
In the meantime one Dr. Lappin, a physician who was customarily called in to attend prisoners at this station house, saw the defendant on Sunday at 11:50 P.M. to attend to his hand. The defendant refused treatment. He saw him again on Tuesday at 1:40 P.M. at the police station and made a tentative diagnosis of delirium tremens. The defendant was nervous and restless. The doctor again saw the defendant at 6:55 P.M. when he appeared to be in about the same condition. The doctor said that upon neither examination was the defendant actually suffering from delirium tremens. Between the visits of the doctor on Tuesday the defendant had been pulling the bars of his cell, and he ripped a toilet bowl off its lugs and broke it. Shortly after the doctor last saw the defendant, Lieutenant Enos committed the defendant to the city prison where he was put in a padded cell. He was brought into the Boston Municipal Court on Wednesday morning.
Testimony relating to the alleged confessions of the defendant and the circumstances attending them was given at a voir dire hearing before the judge in the absence of the jury. The judge ruled that these confessions were proper to be received and considered by the jury. Commonwealth v. Valcourt, 333 Mass. 706, 133 N.E.2d 217. Thereupon substantially the same testimony was given before the jury.
Because of what shall hereinafter appear certain contentions of the defendant, upon which some of the assignments of error are based, must be sustained and there must be a new trial. Therefore we do not consider all of the assignments of error because they concern matters not likely to arise at such new trial.
The fifth and sixth assignments of error are based upon exceptions to the exclusion of certain questions put to Dr. Lappin on the voir dire by counsel for the defendant. The excluded questions were not accompanied by an offer of proof. Therefore we do not consider them. Moreover, most if not all of the excluded testimony was...
To continue reading
Request your trial
-
Com. v. Rosario
...unreasonable when a defendant was arrested on Sunday night and not presented to court until the next Wednesday. Commonwealth v. Banuchi, 335 Mass. 649, 656, 141 N.E.2d 835 (1957). In the Banuchi opinion, the court tolerated delay caused in part by the recording of the defendant's confession......
-
Com. v. Clifford
...1039, 89 S.Ct. 662, 21 L.Ed.2d 586 (1969). Commonwealth v. Welcome, 348 Mass. 68, 70, 201 N.E.2d 827 (1964). Commonwealth v. Banuchi, 335 Mass. 649, 654, 141 N.E.2d 835 (1957). Commonwealth v. Ellis, 321 Mass. 669, 670, 71 N.E.2d 741 (1947). Commonwealth v. Stone, 321 Mass. 471, 473, 73 N.E......
-
Com. v. Walker
...charge faced by the defendant at trial. Commonwealth v. Welcome, 348 Mass. 68, 70--71, 201 N.E.2d 827 (1964). Commonwealth v. Banuchi, 335 Mass. 649, 654, 141 N.E.2d 835 (1957), and cases cited. Nevertheless, this rule is not applicable in all situations where the question arises; rather, t......
-
Com. v. Dominico
...reference to Kelley's criminal activity was a restriction necessary to effectuate the purpose of § 21. See Commonwealth v. Banuchi, 335 Mass. 649, 654, 141 N.E.2d 835 (1957); Commonwealth v. Welcome, 348 Mass. 68, 70--71, 201 N.E.2d 827 The defendants further contend that they were denied t......