Com. v. Borasky

Decision Date01 April 1913
Citation214 Mass. 313,101 N.E. 377
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Christopher T. Callahan, Dist. Atty., of Holyoke, for the commonwealth.

Jos. F Carmody, of Springfield, for defendant.



The indictment charged the defendant and one Antone Kolek with having committed the crime of murder by killing Rose Amansky. Both were convicted, but Kolek has deceased. It does not appear to have been disputed at the trial that the woman was murdered.

1. Borasky seasonably filed a motion that he should have a separate trial on the grounds that there would probably be introduced in evidence a written confession made by Kolek, which implicated both defendants, and that, as he had been unable to obtain a copy, the court should order the commonwealth to furnish a copy, in order that it might be annexed to his motion. At the argument in support of the motion the judge was requested to examine the confession in the presence of the district attorney, and in the absence of the defendant Borasky or his counsel. There was no error in the denial of the motion. Whether two defendants indicted jointly shall be tried together is discretionary with the trial court. This has been decided many times respecting the trial of crimes involving a punishment less than capital. Com. v. Robinson, 1 Gray, 555, 560; Com. v. Thompson, 108 Mass. 461; Com. v. Miller, 150 Mass. 69, 22 N.E. 434; Com. v. Bingham, 158 Mass. 169, 33 N.E. 341; Com. v. Bishop, 165 Mass. 148, 42 N.E. 560; Com. v. Seeley, 167 Mass. 163, 45 N.E. 91. In Com. v. James, 99 Mass. 438, it was stated, in the course of a trial for murder heard by the full court sitting in banc for the trial of two defendants jointly indicted for murder, that 'the general rule is that persons jointly indicted should be tried together.' The confession was there regarded as presenting 'an exceptional case' and it was intimated that a separate trial would be granted if the commonwealth intended to offer the confession. It was not offered and was withdrawn by the commonwealth, and a joint trial was had. It does not appear that the intimation there was thrown out in any other way than as the exercise of discretion. That such a motion is not to be granted as of right but rests in the sound judicial discretion of the trial court, even in capital cases, is the rule in the federal courts. United States v. Marchant, 12 Wheat. 480, 6 L.Ed. 700; U.S. v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300. There is nothing in the case at bar to indicate any abuse of discretion. Plainly, the court was not required to examine the alleged confession in the presence of the district attorney and in the absence of counsel for the defendant. During the trial the court was scrupulous to advise the jury, whenever any statements made by Kolek in the absence of Borasky implicating the latter were offered in evidence, that they were not to be considered against Borasky.

2. William E. Stibbs, called as a juror, stated in reply to one of the usual questions put by the court that he was prejudiced in favor of capital punishment. Further questions by the court developed that the juror would favor conviction only if guilt was established on the evidence beyond a reasonable doubt. At the conclusion of the examination the court said: 'I don't see as your prejudice amounts to anything.' This fairly summarizes the result of the answers of the juror. He was then sworn. After the panel was completed and all the jurors sworn, counsel for the defendants asked that the juror Stibbs be challenged for cause, for the reason that they had not understood his answer that he was in favor of capital punishment. The ancient and common statement in court touching the right of challenge is that it must be exercised before the juror is sworn. See Com. v. White, 208 Mass. 202, 208, 94 N.E. 391. But without placing the decision on that ground, it is plain that the juror was indifferent in law, that he had no knowledge from any source as to the case, and that his answer only meant a firm belief in capital punishment in cases in which it is provided by law. This is far from disqualification in a juror. Com. v. Abbott, 13 Metc. 120.

3. An autopsy was performed by the medical examiner of which a record was made. R. L. c. 24, § 9, and section 10 as amended by St. 1909, c. 273, § 1. The defendant, Borasky, objected to the testimony of the physician, who performed the autopsy, as to his observations, on the ground that the record was the best evidence. This objection was overruled properly. The testimony of the witness who was present and observed the condition revealed by the autopsy was admissible. Com. v. Dunan, 128 Mass. 422.

4. There was testimony tending to show that a check taken from the body of the murdered woman was procured to be cashed by one of the defendants. Her daughter-in-law, Minnie Amansky, who could neither read nor write, testified that she recognized a check shown her as the one in question from the picture of vegetables on it. Against the objection and exception of the defendant Borasky, she was permitted to testify that she had seen other checks from time to time like the one she had identified on the witness stand. This was not error. The testimony of an illiterate person as to the identity of a written instrument is not incompetent. Com. v. Meserve, 154 Mass. 64, 27 N.E. 997. Its value may depend upon the degree of familiarity of the witness with instruments like in kind and evidence tending to show such familiarity has probative force.

5. The defendant Kolek, on cross-examination of Minnie Amansky, asked if in the police court, referring to a day or two before the murder, in reply to the question, 'You found Stefan sleeping in the lot?' she did not testify, 'Yes, my mother-in-law says to me, 'You know Stefan has come." The witness answered in the affirmative. He then asked her, apparently in an effort to show some statement contrary to her earlier testimony, whether her mother-in-law did say two days before her death, 'Do you know that Stefan has come?' The judge admitted the question, so far as it related to Kolek, but directed the jury to disregard it utterly, so far as Borasky was concerned. This was not error. There appears to have been no controversy that Borasky was a guest at the Amansky house on that day and night, and it is difficult to see how in any event he could have been injured by the testimony. But it was distinctly limited in its effect by the ruling of the judge that it was not evidence against him. The same admonition by the judge was given respecting testimony of Godel Amansky to the effect that the defendant Kolek had told him two days before the murder that the defendant Borasky was in the field. The jury was cautioned, whenever occasion arose, not to consider in any way against Borasky evidence, competent against Kolek alone. This protected the rights of the present defendant. Com. v. Rogers, 181 Mass. 184, 193, 63 N.E. 421; Com. v. Bishop, 165 Mass. 148, 151, 42 N.E. 560.

6. The testimony of Godel Amansky was competent, that both defendants, after having been in his house and having seen the woman who was subsequently murdered, attracted his attention by the way in which they looked at him, and that later they laughed at him as he was working in his barn. The conduct, actions and bearing of the defendants, within two days before and at or near the place of the commission of the crime, with which they were charged, was admissible. It was, at least, within the discretion of the trial judge. There were circumstances about the presence of both defendants at the Amansky place which might have been found to indicate some design.

7. A witness, who was a clerk in a liquor store, was permitted, against the exception of the defendant Borasky, to testify that on the evening of the day when Rose Amansky met her death both defendants came into the store and 'appeared to be excited.' The conduct and appearance of the defendants, after the crime had been committed, was competent as bearing upon their guilt. Com. v. Piper, 120 Mass. 185, 189; Com. v. Trefethen, 157 Mass. 180, 198, 31 N.E. 961, 24 L. R. A. 235.

8. A check payable to the order of G. Umansky was on the person of the murdered woman. There was testimony that the two defendants on the evening of the day the crime was committed went together to a liquor store and Borasky told Kolek that the clerk spoke the Polish language, and the former then went out on the sidewalk while the latter indorsed this check and got it cashed, and Borasky returned to the store and told his companion to hurry up, and they departed together. This testimony was competent. There was a considerable body of evidence to show a common design in their association of that day and the few days previous. Com. v. Smith, 151 Mass. 491, 495, 24 N.E. 677; Com. v. Kelly, 186 Mass. 403, 71 N.E. 807.

9. The ruling of the court that there was sufficient evidence for the jury to consider whether the cashing of the check was with the knowledge and approval of Borasky and for the joint benefit of both defendants was proper. Com. v. Rogers, 181 Mass. 184, 193, 63 N.E. 421.

10. The testimony of the witness Dickinson that coming suddenly upon Borasky, while counting money a day or two after the day of the murder, he acted 'kind of sneaky about it,' was also competent. It was responsive to the question. It was not the statement of an inference or conclusion, but rather a description of conduct. Gorham v. Moor, 197 Mass 522, 84 N.E. 436. As such it had...

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