Com. v. Gliniecki
| Decision Date | 30 June 1959 |
| Citation | 339 Mass. 464,159 N.E.2d 657 |
| Parties | COMMONWEALTH v. Joseph J. GLINIECKI (three cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Paul T. Smith, Boston, for defendant.
William T. Buckley, Dist. Atty., and John F. Driscoll, Asst. Dist. Atty., Worcester, for Commonwealth.
Before WILKINS, C. J., and RONAN, COUNIHAN, WHITTEMORE and CUTTER, JJ.
On January 10, 1958, the grand jury for the county of Worcester returned three indictments against the defendant, the first of which charged that the defendant on December 26, 1957, at Webster 'did assault and beat Hazel M. Brown with intent to murder her by shooting her with a shotgun, and by such assault and beating did murder * * * Hazel M. Brown'; the second indictment charged that the defendant on the same day and at the same place 'did assault Kenneth J. Brown by means of a dangerous weapon with intent to murder * * * Kenneth J. Brown'; and the third indictment charged that the defendant on the same day and at the same place 'did assault Eugene W. Stark by means of a dangerous weapon.'
The defendant pleaded not guilty to each indictment and was put to trial before a jury. The trial was subject to G.L. c. 278, §§ 33A-33G, as amended through St.1955, c. 352, § 1. The jury returned a verdict of guilty of murder in the second degree on the first indictment and verdicts of guilty on the second and third indictments. Thereafter the judge imposed a sentence of life imprisonment on the first indictment, and sentences of seven to twelve years and three to five years on the second and third indictments respectively, all sentences to be served concurrently within the precincts of the Massachusetts Correctional Institution at Walpole.
The cases come here upon the appeals of the defendant accompanied by eleven assignments of error based upon exceptions taken at the trial with a summary of the record and a transcript of the evidence. G.L. c. 278, §§ 33A-33G, as amended. The defendant in his brief failed to argue assignments of error numbered 3, 5, 6, and 7 so we deem them to have been waived. There was no error.
The defendant concedes in his brief that '[t]he jury could have found from the government's witnesses that on December 26th the defendant, armed with a shotgun, drove to the Stark home [a son-in-law of the deceased] where the deceased was visiting; that he threatened the deceased; that she and Stark drove to her house to get certain gifts the defendant had given her; that the defendant waited outside the Stark home; that upon the return of Stark and the deceased, the threatened to kill Stark and then intentionally shot and killed the deceased and then shot at Kenneth Brown [her son] who drove up to the scene of the homicide, at the time of, or immediately after the homicide.' He also concedes that there was evidence from which the jury could find that when informed that the deceased no longer wished to see him, the defendant told the deceased that 'if he 'couldn't have her' no one else would.'
The defendant's first assignment of error relates to the denial by the judge of his motion filed immediately before the trial for a continuance, which was predicated upon an allegation that the Commonwealth had illegally acquired possession of certain property of the defendant, particularly some letters received by him from the deceased or members of her family. These letters had been previously brought to the attention of the judge by a motion to suppress evidence of these letters, filed on February 25, 1958. That motion was heard by the judge in his lobby in the absence of a stenographer and was denied by him on the ground that no action was required. The motion for a continuance made reference to the defendant's motion to suppress which included a request that the letters be returned to him. This earlier motion is not reproduced in the summary of the record and no assignment of error was filed with respect to the denial of it. We therefore do not consider it. G.L. c. 278, § 33D. Commonwealth v. Cero, 264 Mass. 264, 271, 162 N.E. 349. Commonwealth v. Polian, 288 Mass. 494, 496-497, 193 N.E. 68, 96 A.L.R. 615. Commonwealth v. Gale, 317 Mass. 274, 277, 57 N.E.2d 918. Commonwealth v. Bellino, 320 Mass. 635, 644, 646, 71 N.E.2d 411. The assignment of error relating to the denial of the motion to continue was not adequate to cover the motion to suppress and return. No affidavit accompanied the motion for a continuance as required by Rule 46 of the Superior Court (1954). The denial of the motion to continue rested in the discretion of the judge and no abuse of discretion is shown. Commonwealth v. Klangos, 326 Mass. 690, 96 N.E.2d 176, and cases cited.
If the defendant desired information about the contents of the letters he should have sought it by a motion to inspect. See Commonwealth v. Bartolini, 299 Mass. 503, 506-507, 13 N.E.2d 382; Commonwealth v. Giacomazza, 311 Mass. 456, 462, 42 N.E.2d 506.
The second assignment of error also relates to these letters which Lieutenant Lacaire, a detective of the State police, admitted were in his possession at the time of the trial. In cross-examination he was asked, 'Well, a couple of weeks ago, the defendant demanded the return of that property, didn't he?' He answered 'He did,' but upon objection by the district attorney the question was excluded. There is nothing to this assignment of error for whether the defendant made a demand for the return of the letter is immaterial to his guilt.
The fourth assignment of error relates to the admission of testimony of Lieutenant John F. Collins, a ballistics expert of the State...
To continue reading
Request your trial
-
Com. v. Jacobs
...us under G.L. c. 278, §§ 33A-33G. See Commonwealth v. Geagan, 339 Mass. 487, 494-502, 159 N.E.2d 870. Cf. Commonwealth v. Gliniecki, 339 Mass. 464, 466-467, 159 N.E.2d 657. At the hearing on the motions, counsel for the defendants pointed out that, although the motions were filed under only......
-
Com. v. Monahan
... ... However correct the remaining requested instructions might have been, there was no error in refusing [349 Mass. 171] to give them inasmuch as their subject matter was adequately covered in the charge. Commonwealth v. Agiasottelis, 336 Mass. 12, 15-16, 142 N.E.2d 356; Commonwealth v. Gliniecki, 339 Mass. 464, 470, 159 N.E.2d 657. 'While a defendant, in a criminal case, is entitled to have the issues of fact clearly presented to the jury and the law applicable thereto carefully explained, the method and extent of the charge must be left to the discretion of the judge. It is not to be ... ...
-
Com. v. Martin
...verdicts of not guilty. Additional errors alleged by the defendant but not argued in his brief are deemed waived. Commonwealth v. Gliniecki, 339 Mass. 464, 466, 159 N.E.2d 657. We summarize the evidence in its light most favorable to the Commonwealth to the extent necessary for consideratio......
-
Com. v. Therrien
...Mass. 77, 92, 268 N.E.2d 132 (1971); Commonwealth v. Monahan, 349 Mass. 139, 170--171, 207 N.E.2d 29 (1965); Commonwealth v. Gliniecki, 339 Mass. 464, 469, 159 N.E.2d 657 (1959); Commonwealth v. Polian, 288 Mass. 494, 499, 193 N.E. 68 (1934).a. Mass.Adv.Sh. (1975) 2652, 2666--2667.b. Mass.A......