Com. v. Boyajian
| Decision Date | 02 April 1962 |
| Parties | COMMONWEALTH v. Richard BOYAJIAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Joseph G. Crane, Boston, for defendant.
Ruth I. Abrams, Asst. Dist. Atty., for Commonwealth.
Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.
This is an appeal under the provisions of G.L. c. 278, § 33B, as amended through St.1955 c. 352, § 1, from a conviction of murder in the second degree. The defendant, having waived a trial by jury, was tried before a judge on two indictments. In one he was charged with murder in the second degree. The other was for conspiracy with eight other codefendants to commit an assault and battery upon a person unknown. The Record does not include the indictment for conspiracy and no argument is made concerning the conviction on that indictment. The transcript of evidence includes all the evidence introduced at the trial on both indictments.
There are eleven assignments of error. The first three are based on exceptions to the admission of testimony and the remaining eight to the denial of certain of the defendant's requests for rulings.
There was evidence that a friend of the defendant, one Vincent Andrews, who lived in Watertown, had been beaten in a fight in Arlington on March 20, 1960. The defendant and a group of others decided to go to Arlington to 'beat up' the 'fellow who beat up Andrews.' On the following evening, the defendant and eight others drove in two cars to Bruno's Variety Store in Arlington. The defendant was wearing his work clothes, in the pocket of which was a knife that he used in the course of his employment in a produce packing company. He also had a baseball bat with him which he had taken from his cellar that evening.
The defendant and several of his companions entered the store. He noticed two girls and a boy with a broom in his hand. The deceased, Frank Theall, came from the rear of the store and asked the boys what they wanted there. Theall told them to get out and grabbed one of the boys. The boys then 'pushed him [Theall] out the door.' A fight began between Theall and two of the defendant's companions. One of the boys was knocked down and when he got up there was blood on his arm. All the boys started to leave. 'They were heading towards the parking lot.' Theall grabbed another of the boys but the boy 'wrenched away.'
Theall started coming toward the defendant. The defendant pulled the knife out of his pocket, opened it and 'waved it back and forth, slashing.' The defendant testified that he told Theall, "Keep away from me or I'll have to use it.' Then I stopped and I just held it out, and he came at me. He lunged at me, and before I could pull it back, I felt it go into him.'
On cross-examination the defendant testified that he held his arm out with the knife in his hand, the blade pointed forward and Theall jumped chese first into the blade of his knife. After the fight while returning to Watertown in the car, the defendant said to his companions that he thought he might have stabbed Theall.
Upon completion of the defendant's cross-examination, the judge asked the defendant the following question: 'When you and Mr. Theall were out there in the street, were there any of the other boys immediately behind you?' The defendant answered, 'No, I don't think so.' The judge then asked, 'Did you ever turn around and run any distance away from him?' The defendant answered, 'I tried to get around him to--I didn't run back but I tried to get around his left, I think it was, to get to the parking lot.'
One John Mankiewicz, a police segeant in the town of Watertown, testified as follows: On the night of March 21, 1960, he was on duty in a police car and, as a result of a 'radio call,' stopped a Ford automobile. There were four occupants in the car including the defendant. They were ordered out of the car, given a 'pat search, so called,' handcuffed, and taken to the police station. At the station, in the presence of another officer, Mankiewicz made a thorough search of the defendant, and took off both his shoes. He 'lifted up and emptied the shoes' and a knife fell out onto the floor. The defendant admitted it was his knife. Mankiewicz asked him about some stains on the knife and he replied that he had scratched himself on his left hand. Mankiewicz looked at the defendant's wrist and noticed a slight scratch.
Richard H. Keefe, a lieutenant in the Watertown police department, testified that on the night of March 21, 1960, as a result of a telephone call to his home, he went to the Watertown police station. There he saw the defendant, two other boys, and several police officers. He saw a knife on the floor beside the defendant. He picked up the knife, opened the blade and 'saw brown stains on the blade.'
Cornelius J. Crowley, detective-lieutenant, inspector, of Massachusetts State Police, testified in pertinent part as follows. On March 21, 1960, he went to the Arlington police station and there talked with the defendant. The defendant told him that a number of boys were fighting with Theall; that the defendant took out his knife and slashed it around in front of Theall; that, 'while they were fighting, they got tangled up together and he [the defendant] felt the knife go into the man.'
1. The defendant, by his first assignment of error, contends that the admission of testimony of one Joseph Baxter as to his conversation with some of the codefendants was error. Baxter testified that he was in the store when the defendant and the other boys entered; that he followed Theall and the boys out of the store; that he was stopped by three of the boys at a point about thirty to thirty-five feet away from Theall; and that a conversation with the three boys ensued. He was then asked, 'Would you tell us what the conversation was?' The defendant objected and the witness was permitted to testify, subject to the defendant's exception, as follows: 'I said 'Kind of uneven, isn't it?' and then one of the boys replied back to me I believe he said, 'six stitches." Then the witness was struck in the head by one of the boys.
We perceive no abuse of discretion in the admission of this testimony. The defendant was being tried for conspiracy as well as murder in the second degree. The declarations were...
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