Com. v. Pinnick
| Decision Date | 06 March 1968 |
| Parties | COMMONWEALTH v. Milton P. PINNICK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William Lender, Boston, for defendant.
Thomas J. Mundy, Jr., Asst. Dist. Atty., for the Commonwealth.
Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and REARDON, JJ.
The defendant was found guilty on an indictment charging him with assault and battery by means of a dangerous weapon. The trial was subject to G.L. c. 278, §§ 33A--33G, and the defendant has appealed. We have before us a summary of the record, a transcript of the evidence, and assignments of error.
There was evidence that on April 21, 1966, Carmine Restaino, fifty years of age and employed as a truck driver, upon arrival at his home at 432 Seaver Street in the Dorchester district of Boston, where he lived with his wife and three children, was assaulted with a machete. His wife responded to calls from him and went to the inner hallway of the apartment where she found her husband sitting on the floor with blood pouring from his head, his clothes slit and covered with blood, and a bag of doughnuts on the floor also blood covered. After handing his wife his bloodstained wallet containing two dollars, also bloodstained, Restaino collapsed in her arms uttering only the words, 'Two boys, two boys.' He was taken to the Carney Hospital where he underwent brain surgery for damage resulting from a skull fracture and the severing of the middle meningeal artery. He remained in a coma for three months, and was eventually transferred to a Veterans Administration Hospital and thence to a nursing home. He never recovered from his brain trauma which left him mute, paralyzed, and disoriented. He died on April 23, 1967.
Prior to the assault four boys, including the defendant, had been together in the vicinity of the assault, and the defendant was in possession of a machete which at one point he had stuck into the tire of a car parked at a curb and which at another time he employed to 'bust' a car window. His companions told of seeing the defendant hacking at Restaino with the machete when Restaino was prone on the floor of the hallway.
We deal with the assignments in the order in which they have been argued to us in the defendant's brief.
1. The defendant first complains of certain language employed by the judge in his charge as follows: 1 This, it is contended, inflamed the minds of the jury. The duty of the court is to instruct the jury on questions of law pertinent to the issue. Commonwealth v. Porter, 10 Metc. 263, 286.
The remarks of the judge in this instance, while not directly related to the issue on trial, cannot be characterized as prejudicial. His charge is to be read in its entirety. It is the impression created by the charge as a whole that constitutes the test. Commonwealth v. Aronson, 330 Mass. 453, 115 N.E.2d 362. These considerations govern the appraisal of the charge whether the case be criminal or civil in nature. Goltz v. Besarick, 313 Mass. 14, 17, 46 N.E.2d 9; Commonwealth v. Greenberg, 339 Mass. 557, 585, 160 N.E.2d 181; Haven v. Town of Brimfield, 345 Mass. 529, 533, 188 N.E.2d 574; Commonwealth v. Kleciak, 350 Mass. 679, 692, 216 N.E.2d 417. In the light of them the judge's charge was fair. In the passage of which there is complaint he endeavored to resolve a question which might well have lain in the minds of the jury.
2. The defendant objects also to a portion of the charge relating to evidence given by a neurologist based on an examination made more than two months after the assault, the question being whether this evidence was pertinent to the issue of the victim's mental condition so as to explain his exclamation, 'Two boys, two boys.' The judge stated to the jury, 'If you feel that the mental condition of Mr. Restaino was such, in view of the injuries that he received, and they were admittedly serious--bearing on this question you have the testimony of the doctor, Dr. Toll, as to the injury, the fractured skull and lesions of the brain--so that you have to be satisfied that that was a statement that he made knowing what he was saying, and as bearing upon the...
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Com. v. Edgerly
... ... DeChristoforo, 360 Mass. 531, 539, 277 N.E.2d 100 (1971). We have read the entire charge and examined the probable overall impact of the instructions on the jury. We conclude that they were given the guidance they needed to determine the issue. Commonwealth v. Pinnick, 354 Mass. 13, 15, 234 N.E.2d 756 (1968) ... Motion for a New Trial ... Pursuant to G.L. c. 278, § 29, the defendant moved for a new trial on the ground that justice might not have been done at his trial. After a hearing the judge denied the motion, and the defendant ... ...
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Com. v. McLeod
...While the judge was required to instruct the jury on any issues which could be inferred from the evidence (see Commonwealth v. Pinnick, 354 Mass. 13, 15, 234 N.E.2d 756 [1968] ), he was not required to give an instruction that misstated the law. Commonwealth v. Monahan, 349 Mass. 139, 170-1......
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...the impression created by it as a whole.' See Commonwealth v. Kelley (359) Mass. (77, 92) 268 N.E.2d 132. See also Commonwealth v. Pinnick, 354 Mass. 13, 15, 234 N.E.2d 756. So viewed, and in the context of otherwise proper instructions on relevant legal issues, the remark was harmless in t......
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...the common law rule appears to apply to prosecutions of all forms of criminal homicide.[18] . E.g., Commonwealth v. Pinnick, 234 N.E.2d 756 (Mass. 1968), overruled on other grounds by Commonwealth v. Lewis, 409 N.E.2d 771 (Mass. 1980).[19] . Statutes of Gloucester, 6 Edward 1, ch. 9 (1278).......
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TABLE OF CASES
...248 Pike, State v., 49 N.H. 399 (1870), 324, 332 Pinkerton v. United States, 328 U.S. 640 (1946), 462, 463, 466 Pinnick, Commonwealth v., 234 N.E.2d 756 (Mass. 1968), 475 Plumhoff v. Rickard, 134 S. Ct. 2012 (2014) , 266 Plummer, People v., 581 N.W.2d 753 (Mich. Ct. App. 1998), 484 Poddar, ......