Com. v. King

• Decision Date: 09 December 1969
• Citation: 356 Mass. 495,253 N.E.2d 863
• Parties: COMMONWEALTH v. Donald A. KING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 863

253 N.E.2d 863

356 Mass. 495

COMMONWEALTH v. Donald A. KING.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 7, 1969.

Decided Dec. 9, 1969.

John P. White, Jr., Boston, for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty., for the Commonwealth.

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

WILKINS, Chief Justice.

The defendant was charged on September 5, 1967, in indictments numbered 31,222, 31,223, and 31,224 with the respective crimes of assault and battery by means of a dangerous weapon, namely, a 'straight' razor; mayhem; and assault with intent to rob while armed. Upon arraignment he was given court appointed counsel because of indigence. ¹ On March 19, 1968, there were verdicts of guilty on indictments 31,222 and 31,224. He was acquitted on indictment 31,223. On March 20, 1968, he was sentenced to the Massachusetts Correctional Institution at Walpole, for concurrent terms of not more than eighteen years, nor less than fourteen years on indictment numbered 31,224, and of not more than five years nor less than three years on indictment numbered 31,222.

The defendant pro se filed (1) on March 26, 1968, a 'late motion' (described in the bill of exceptions as filed 'seasonably') to make the trial subject to G.L. c. 278, §§ 33A--33G, and (2) on May 6, 1968, a motion for the entire trial transcript, without cost. After hearing, the trial judge denied both motions on May 24, 1968, subject to exceptions. ² These are the sole issues presented in this bill of exceptions.

There was a conflict between the defendant and his trial counsel. Upon the defendant's request new counsel was appointed to represent him on his motions.

The defendant's trial counsel had saved exceptins to the introduction of evidence. These exceptions are not set forth in the bill, which contains all the evidence material to the issues raised. The defendant also testified in his own behalf, and admitted ownership of the 'straight edge' razor involved, and striking the complaining witness with that razor.

The defendant's contention that his late filing of the motion that the case be made subject to G.L. c. 278, §§ 33A--33G, was seasonable is correct. Commonwealth v. Silvia, 343 Mass. 130, 133, 177 N.E.2d 571. However, his contention that the denial of the motion denied him equal protection of the law is erroneous. Section 33A (as amended through St.1955, c. 352, § 1) provides in part, 'In any proceeding or trial upon an indictment for murder or manslaughter or, by order of the court, upon an indictment or complaint for any other felony * * * made subject to this and the six following sections, the evidence taken as above provided shall be transcribed in such number of copies as the court may direct.' The defendant was not tried for murder or manslaughter. All other felonies must be made subject to §§ 33A--33G by a discretionary order of the court. Guerin v. Commonwealth, 337 Mass. 264, 267, 149 N.E.2d 220; Commonwealth v. Silvia, 343 Mass. 130, 132, 177 N.E.2d 571. This is the effect of the legislative history. The original enactment in St.1925, c. 279, § 1, was confined to murder and manslaughter, but was extended on a discretionary basis to all felonies by St.1926, c. 329, § 1. This extension was pursuant to a recommendation of the Governor, acting on the 'Special Report of the Judicial Council as to Expediting the Decision of Questions of Law in Criminal Cases,' which stated: 'There are great delays in complying with the present practice as to drawing up bills of exceptions. In that connection the Council suggests that it is worth while to provide that in drawing a bill of exceptions * * * the defendant be allowed to use the stenographic report (where the evidence has been taken by a stenographer) without charge * * *.' Second Report of the Judicial Council, November, 1926, Appendix A, at page 81.

By St.1954, c. 187, § 1, § 33A was made applicable to 'any proceedings or trials upon an indictment or complaint for any felony and for any misdemeanor tried with a felony.' The mandatory provision was substituted for the discretion of the judge as to certain offences.

By St.1955, c. 352, § 1, § 33A was amended to read in part, 'In any proceeding or trial upon an indictment for murder or manslaughter or, by order of the court, upon an indictment or complaint for any other felony, and a misdemeanor tried with such felony made subject to this and the six following sections, the evidence taken * * * (by an official stenographer or court appointed...