Com. v. D'Agostino

• Decision Date: 07 May 1962
• Citation: 182 N.E.2d 133,344 Mass. 276
• Parties: COMMONWEALTH v. Anthony D'AGOSTINO (three cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 133

182 N.E.2d 133

344 Mass. 276

COMMONWEALTH v. Anthony D'AGOSTINO (three cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 2, 1962.

Decided May 7, 1962.

Walter Powers, Jr., Boston, for defendant.

Lawrence L. Cameron, Asst. Dist. Atty. (Newman A. Flanagan, Boston, with him), for the Commonwealth.

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

SPIEGEL, Justice.

The defendant was tried on three indictments of the Suffolk County grand jury. Indictment numbered 228 charged the defendant with assault and battery 'by means of a certain dangerous weapon, to wit: a sharp instrument, a more particular description of which is * * * unknown,' upon the person of Leonard Pasco. Indictment numbered 229 charged that the defendant 'did commit an assault and battery upon one Adam DiPasquale, by means of a certain dangerous weapon, to wit: a sharp instrument, a more particular description of which is * * * unknown.' Indictment numbered 230 charged that the defendant 'did wilfully and maliciously injure and destroy certain personal property to wit: a coat of the value of seventy-five dollars, of the property of Adam DiPasquale.'

The jury returned verdicts of guilty on each indictment. The defendant was sentenced to a term of four to seven years on indictment numbered 228 and a similar term on indictment numbered 229, the sentences to be served concurrently, and indictment numbered 230 was placed on file.

The defendant appealed and filed forty-five assignments of error. Thirty-one of these have not been argued by the defendant. Assignments of error not argued are deemed waived. Commonwealth v. Taylor, 327 Mass. 641, 646, 100 N.E.2d 22. The defendant has grouped many of the remaining assignments of error under 'topical headings' and has so argued them.

There was testimony that Pasco and a friend, Richard DeAngelis, went to the Reef Club, a cafe in Revere, at about 10:30 P.M. on February 3, 1961, and remained there until closing time at 1 A.M. the following morning. On their way out, as they were talking to one another, a girl, one Brenda Riccioli, who was sitting at the bar with the defndant, jumped up and said, 'Hey, watch your language.' DeAngelis apologized and his friend and he continued walking toward the door. They went to the door and Pasco then returned to where the defendant and the girl were sitting, and, he too, apologized. The defendant then 'turned around, pulled across with his hand and slashed * * * [Pasco's] face.'

Adam DiPasquale, a Revere police officer, on special detail at the Reef Club, observed the defendant 'take a slashing swing at Pasco's face.' DiPasquale ran to Pasco and pulled him away from the defendant. The defendant came at Pasco again and made 'swiping motions' at his face. DiPasquale felt a sharp sensation in his left hand. DiPasquale led Pasco to the men's room and applied first aid. He saw five lacerations on Pasco's face and slashes in the left sleeve of his police coat.

Pasco and DiPasquale were treated at Revere Memorial Hospital by a Dr. Julian Seide who applied ninety to one hundred sutures to Pasco's face and about nine sutures to DiPasquale's left hand.

Assignment 14. Richard DeAngelis, called as a witness by the Commonwealth, was examined on direct, redirect, cross and recross-examination. At the conclusion of recross-examination by the defendant's counsel, the judge asked the witness several questions. After the witness had answered the judge's questions, the defendant's counsel sought to recross-examine the witness. The judge refused to permit any further cross-examination and the defendant assigns this refusal as error.

The record shows that the witness had been cross-examined and recross-examined at considerable length. The answers given by the witness in response to the judge's questions were not inconsistent with prior testimony given by the witness. The extent and length of cross-examination are within the discretion of the trial judge. Smith v. Boston Elevated Ry. Co., 208 Mass. 186, 187, 94 N.E. 315; Goldman v. Ashkins, 266 Mass. 374, 379-380, 165 N.E. 513. There was no error.

Assignments 3, 5, 33. The defendant objected to the admission of certain evidence because it tended to show that a knife was used in the commission of the assault, whereas the indictments did not specify the type of weapon used. The indictments charged, however, that the assaults were committed with a 'dangerous weapon, to wit: a sharp instrument,' and the evidence objected to was admissible to prove that the assaults were so committed. '[W]ith a few exceptions, all evidence which 'can throw light on the disputed transaction is admitted.'' Commonwealth v. Durkin, 257 Mass. 426, 428, 154 N.E. 185, 186; Kramer v. John Hancock Mut. Life Ins. Co., 336 Mass. 465, 467, 146 N.E.2d 357.

Furthermore, there was other evidence, admitted without objection, that the lacerations were caused by a 'short sharp instrument'; that the injuries were caused by a knife; and that the cuts in DiPasquale's coat were caused by a 'sharp-bladed instrument.'

Assignments 6, 12, 27. These relate to the admission of evidence which the defendant contends was 'immaterial and could only have the effect of prejudicing the defendant, by remphasizing the injuries to the victims.' The evidence objected to includes photographs of the lacerations taken seven days after the injury; testimony by a...