Com. v. England

• Decision Date: 06 January 1966
• Citation: 350 Mass. 83,213 N.E.2d 222
• Parties: COMMONWEALTH v. Antonio ENGLAND et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 222

213 N.E.2d 222

350 Mass. 83

COMMONWEALTH v. Antonio ENGLAND et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 1, 1965.

Decided Jan. 6, 1966.

Walter Jay Skinner, Sp. Asst. Atty. Gen., for Commonwealth.

Patrick F. Murphy, Boston (Daniel J. Dempsey, Boston, with him) for defendants.

Before SPALDING, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

REARDON, Justice.

A judge of the Superior Court has reported these six cases under G.L. c. 278, § 30A, for the resolution of questions of law posed by motions to quash and pleas in abatement filed by the defendants.

The pleas in abatement in all cases were directed to the validity of indictments returned by a special grand jury convened pursuant to the provisions of G.L. c. 277, § 2A, on October 14, 1964, for a term of six months. On April 9, 1965, following representations by the Attorney General of the Commonwealth to the Chief Justice of the Superior Court 'that public necessity required further time by said special grand jury to complete an investigation then in progress,' the Chief Justice ordered that they should continue to serve until April 23, 1965, 'to complete any investigation then in progress, but to take up no new matter.' The indictments were returned on April 22, 1965, and on the same day the grand jury were discharged. The trial judge found that the grand jury commenced to hear evidence leading to these indictments on March 31, 1965, and 'that these indictments resulted from investigations in progress before April 13, 1965 and were not new matters taken up by the Grand Jury thereafter.'

The motions to quash attacked the validity of the indictments which severally charged one felony, the stealing of money of the value of more than $100, pursuant to a single scheme between two stated dates. ¹ The defendants' motions alleged inter alia that the indictments set forth no crime known to law, that the language was vague and indefinite, that they alleged a series of separate and distinct felonies or separate and distinct misdemeanors, and that the defendants could not determine from the indictment language whether they were severally charged with a felony, a series of felonies, a misdemeanor, or a series of misdemeanors.

1. That indictments were returned by a special grand jury more than six months after they were sworn and commenced their deliberations does not invalidate the indictments. General Laws c. 277, § 1A, states that upon written notice by the Attorney General to a justice of the Superior Court setting forth that 'public necessity requires further time by a grand jury to complete an investigation then in progress, the court may order such grand jury to continue to serve until said investigation has been completed and shall take up no new matter.' It is urged by the defendants that § 1A, added by St.1952, c. 494, was directed only to regular grand juries convened under G.L. c. 277, § 2, and is not to be extended to encompass special grand juries, provision for which is made by G.L. c. 277, § 2A. However, the extension provisions were enacted thirty years after § 2A, which provided for the calling of a special grand jury, and the Legislature must be presumed to be aware that the language 'a grand jury' and 'such grand jury' appearing in § 1A, would naturally comprehend special as well as regular grand juries. The generality of the section's language does not admit of an exclusion of special grand juries from its operation.

In Unites States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546, Mr. Justice Frankfurter considered a claim that indictment by a grand jury was improper because 'an order extending the life of the grand jury was void.' He noted that the 'historic role of the grand jury' required that it be possible for the grand jury's term to be extended so that they could continue to consider matters raised during their original term. He remarked that such extensions were necessary in order 'to make the grand jury a more continuous and therefore more competent instrument of what have become increasingly more complicated inquiries into violations of * * * criminal law.' 319 U.S. 511, 63 S.Ct. 1237. To permit extension of the regular grand jury under § 1A, and to deny it for the special grand jury would be to make an untenable distinction between them, one with no basis in the statute governing extensions. This would lead to unnecessary expense, dislocation of orderly presentation of evidence to special grand juries, and other undesirable results which we think the Legislature did not intend.

2. The report raises the question of the validity of an indictment for one felony committed pursuant to a single scheme between dates certain, in this case the stealing of money of the value of more than $100. Although the law is settled in a great many other States and in England that such an indictment is valid, we have not directly considered in this jurisdiction the problem of the single larceny created by successive takings pursuant to a single and continuing intent. It has been said, 'It is sometimes necessary to determine, when several articles are stolen on different occasions over a period of time, whether such series of acts or takings constitute a single offense or larceny, the question having most frequently arisen with respect to whether the accused was guilty of grand larceny or merely a series of petit larcenies, and in other cases with respect to the question whether a count in the indictment properly charged a single offense or several offenses. * * * [I]f each taking is the result of a separate, independent impulse or intent, each taking is a separate crime. * * * [W]hen it appears that the successive takings are actuated by a single, continuing, criminal impulse or intent or are pursuant to the execution of a general larcenous scheme, it has been held or stated that such successive takings constitute a single larceny, regardless of the extent of the time which may have elapsed between each taking.' Anderson, Wharton's Criminal Law & Procedure, & 450. 136 A.L.R. 948.

We observe that some cases cited in the briefs of both the Commonwealth and the defendants involve crimes which by statutory definition relate to periods of time. Wells v. Commonwealth, 12 Gray, 326 (keeping a house of ill fame); Commonwealth v. Robinson, 126 Mass. 259 (keeping a tenement for illegal sale of liquor); Commonwealth v. Sullivan, 146 Mass. 142, 15 N.E. 491 (setting up and promoting a lottery); Commonwealth v. Peretz, 212 Mass. 253, 98 N.E. 1054 (deriving support from a prostitute's earnings); ...