Com. v. Geagan
| Citation | 159 N.E.2d 870,339 Mass. 487 |
| Parties | COMMONWEALTH v. Michael Vincent GEAGAN et al. (three cases). COMMONWEALTH v. Joseph F. McGINNIS (ten cases). |
| Decision Date | 01 July 1959 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Paul T. Smith, Manuel Katz, Robert J. DeGiacomo, Boston, and Lawrence F. O'Donnell, Dorchester (Nicholas E. Liontakis, Revere, Malvin S. Louison, Taunton, and Henry Sontag, Boston, with them), for defendants.
John F. McAuliffe, Asst. Dist. Atty., Boston (Gerald F. Muldoon, Asst. Dist. Atty., Boston, Donald P. Brennan, Roxbury, George F. Hurley and John P. White, Boston, with him), for the Commonwealth.
Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS and CUTTER, JJ.
On January 17, 1950, there was a robbery at 165 Prince Street, Boston, the premises of Brink's, Incorporated, a company engaged in the transportation of money and valuables. The amount taken was $1,219,000. Eight defendants have been convicted on various indictments growing out of that robbery, and bring these cases here on appeals pursuant to G.L. c. 278, §§ 33A-33G, as amended, which are accompanied by a summary of the record, a transcript of the evidence, and their respective assignments of error.
The eight defendants are Geagan, McGinnis, Faherty, Pino, Richardson, Maffie, Costa and Baker. Case number 99 is an indictment in three counts for robbery while armed against these eight one Gusciora and one Banfield (both deceased before trial), and one O'Keefe (who pleaded guilty to that indictment and testified for the Commonwealth). The indictment in case number 100 charges the same persons with breaking and entering in the nighttime with intent to commit robbery. In these two cases a verdict of not guilty was directed for McGinnis, and the other seven defendants were convicted. All eight defendants were convicted on the indictment in case number 101, charging conspiracy to steal. McGinnis also was convicted in ten cases against him alone: case number 145, an indictment charging him with receiving stolen goods; case number 147, an indictment in ten counts, charging him with being an accessory before the fact to breaking and entering in the nighttime with intent to commit a felony; and cases number 148 to 153, inclusive, 156, and 157, eight indictments, each in three counts, charging him with being an accessory before the fact to armed robbery.
There were returned many more indictments than the number tried. In the defendants' brief the total is given as 158 indictments containing 496 counts. To these the defendants filed a large number of special pleadings, much to extensive helpfully to be set forth at length. It will be convenient to describe them as summarized in the defendants' brief. Each defendant filed to each indictment in which he was named as a defendant a motion to quash, a plea in abatement, and a plea in bar, and in support of each an affidavit to which there were seven exhibits. Each special pleading concluded with prayers that the Commonwealth be ordered to file a replication 'or other answer'; that thereafter the special pleading be set down for hearing; and that the indictment be barred, abated, or quashed, as the case might be. Each defendant claimed a trial by jury on factual issues which he contended were raised by grounds 1, 2, 3, and 6 of each special pleading and its accompanying affidavit. All issues presently material were sought to be raised by each such plea and motion.
Ground 1 alleged that the indictment was returned in violation of art. 12 of the Declaration of Rights of the Constitution of the Commonwealth, G.L. (Ter.Ed.) c. 277, § 5, the Fourteenth Amendment to the Constitution of the United States, and 18 U.S.C. (1952) § 241. The supporting allegations were that prior to the commencement of the grand jury proceedings the district attorney, his assistants and investigators, 'other officials of the Commonwealth,' the Federal Bureau of Investigation, and the Federal Department of Justice 'issued and caused or permitted to be issued without denial, retraction, minimization or suppression * * * news releases and statements setting forth in great detail: that the so called Brink's robbery had unequivocally been solved; that the said defendants together with other defendants had unequivocally planned and committed the so called Brink's robbery; how the robbery was solved; how the robbery was planned and committed by the said defendants together with the other defendants; the criminal record and so called background data of each of the defendants; and linking the disappearance, death or murder of others and other crimes with the so called Brink's robbery and the said defendants'; that 'such releases and statements appeared under large and sensational headlines and in great detail in every daily newspaper published in Boston and in every, or nearly every, daily newspaper published not only elsewhere in Massachusetts, but throughout the nation'; that 'such releases and statements, or detailed summaries thereof, were repeatedly broadcast and televised over radio and television stations located in Massachusetts, as well as over national hook-ups heard and seen in Massachusetts'; and that such 'widespread and sensational publicity' was 'calculated to and did tend to convince the public, in general, and the grand jury, in particular, of the guilt of each of the defendants and to arouse their animosity, indignation and prejudice towards and against each of the said defendants.'
Ground 2 alleged that the return of the indictment was repugnant to art. 12, to c. 277, § 5, and to the Fourteenth Amendment because 'unauthorized persons were present in the grand jury room during the proceedings and deliberations of the grand jury returning this indictment.'
Ground 3 alleged that the return of the indictment was repugnant to the same provisions as in ground 2, because 'prior to, during, and subsequent to, the proceedings conducted by the grand jury returning this indictment' the district attorney, his assistants and investigators, other officials of the Commonwealth, the Federal Bureau of Investigation, and the Federal Department of Justice violated the secrecy of the proceedings 'by issuing and causing or permitting to be issued, news releases and statements disclosing what witnesses summoned before such grand jury would testify to, were then testifying to, or had testified to.'
Ground 6 alleged that the defendants 'are unable to secure a fair and at the same time speedy trial' as guaranteed by arts. 1, 11, and 12 of the Declaration of Rights, the Fourteenth Amendment, and 18 U.S.C. (1952) § 241. The supporting allegations as to statements since the return of the indictment are similar to those made in ground 1, with additional statements as to 'what Joseph 'Specs' O'Keefe, one of the defendants who has heretofore pleaded guilty, or a member of his family * * * said implicating the defendants not only in the Brink's robbery but in other crimes including murder, kidnapping, the escape of 'Trigger' Burke 1 and larceny; how the said Joseph 'Specs' O'Keefe has stated that a $200,000 defence fund had been established by the defendants; how the said Joseph 'Specs' O'Keefe has accused other of the defendants of stealing from him his share of the Brink's robbery loot; how part of the loot had been or was about to be recovered; where the bodies of those supposedly murdered by the defendants had been, or were suspected of being, buried; and how other defendants had confessed'; that such 'releases and statements have frequently appeared in magazines having substantial circulations in Massachusetts and throughout the nation'; and that the 'news releases and statements and the widespread publicity given them have been calculated to and tend to convince the public in general and any petit jury which may be selected in the future to try this indictment, in particular, of the guilt of each defendant, and to arouse and maintain their animosity, indignation and prejudice towards and against each of the said defendants.'
Before trial on the merits the issues raised by the three kinds of special pleadings were considered in the Superior Court on representative papers filed in certain of the cases. This was done for convenience and without objection. While there was no confusion in the Superior Court, these matters, coming here on a lengthy stenographic transcript of the hearing and without copies of all the papers, present themselves to us in time consuming fashion. The judge took up these issues first upon the motions to quash, all of which were denied, and then upon the pleas in abatement, and finally upon the pleas in bar. He ultimately extended his earlier rulings upon the motions to the pleas, all of which were overruled or disproved.
As the substance and not the name of a pleading controls (Commonwealth v. Wakelin, 230 Mass. 567, 571, 120 N.E. 209; E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110, 163 N.E. 883; Toy v. Green, 319 Mass. 354, 357, 65 N.E.2d 558), we shall consider the several grounds of the pleadings which we have summarized above under the forms of procedure to which their substance is appropriate.
1. A motion to quash is confined to taking objection to an indictment 'for a formal defect apparent on the face thereof.' G.L.(Ter.Ed.) c. 278, § 17. 2 It is the equivalent of a demurrer. United States v. Slobodkin, D.C.D.Mass., 48 F.Supp. 913, 915. None of the objections was of this character. No argument is made that they were. The motions to quash were rightly denied.
2. The proper purpose of a plea in bar is to set up a ground not open under a plea of not guilty, which is an absolute defence, not only at the time of filing but for all time. Examples of appropriate pleas in bar are former acquittal, former conviction, and pardon. United States v. Murdock, 284 U.S. 141, 151, 52 S.Ct. 63, 76 L.Ed. 210; United States v. Brodson, 7 Cir., 234...
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