Com. v. Vanetzian

Decision Date04 April 1966
PartiesCOMMONWEALTH v. Vahey VANETZIAN.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Lyman C. Sprague, Boston (Robert U. Holden and Frank J. Opie, Ayer, with him), for defendant.

Francis K. Monarski, Asst. Dist. Atty. (Ruth I. Abrams and Anthony Di Perna, Asst. Dist. Attys., with him), for the Commonwealth.

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

SPALDING, Justice.

The defendant was found guilty of murder in the first degree of Charles Dionisio with a recommendation that the sentence of death be not imposed. G.L. c. 265, § 2. The case comes here by appeal under G.L. c. 278, §§ 33A--33G, with numerous assignments of error.

The jury could have found the following: On the evening of October 23, 1959, the defendant entered a grocery store in Watertown where Dionisio, aged twenty-five, was employed as a clerk. At gunpoint, the defendant compelled Courtney, the manager of the store, to hand over the money contained in the cash register. He then ordered Courtney to accompany him to the safe, and shortly thereafter became involved in a scuffle with Dionisio. There was no evidence as to precisely how the struggle began, but during its course two shots were discharged into Dionisio. The defendant then broke free from the victim, who at this point held the gun and was endeavoring to restrain him, and ran out of the store.

Dionisio was admitted that evening to the Mount Auburn Hospital in Cambridge and underwent emergency surgery. One bullet had entered the upper right side of his abdomen, then had passed through his intestines and out through his back. The other had passed through his right thigh. In the period following the operation, a severe infection (peritonitis) caused by the escape of bacterial matter from the intestines developed in his peritoneal cavity. In spite of the numerous procedures employed to combat this condition, the infection spread, resulting in the formation of four extensive abscesses. Three more operations were performed in an attempt to save Dionisio's life, the last on April 7, 1960, during which a large segment of his intestines was removed. Dionisio died on April 13, 1960, slightly less than six months after the assault. 1 The opinion of the surgeon who performed the autopsy was that he died 'as the result of multiple intra-abdominal abscesses, bronchopneumonia, and left empyema due to gunshot wound of the abdomen with perforations of the colon.'

In November, 1959, prior to the victim's death, the defendant was indicted for assault and battery upon Dionisio by means of a dangerous weapon, and for other crimes connected with the robbery. There is no question that these indictments arose out of the same set of circumstances which occasioned the present indictment. The defendant pleaded guilty to the November, 1959, indictments and was sentenced.

Because of his prior conviction for the assault and battery, the defendant entered a plea of autrefois convict to the present indictment for murder. The plea was denied, subject to the defendant's exception. At the close of the evidence motions were made for directed verdicts on all the possible crimes for which the defendant could have been convicted under the indictment (ranging from simple assault and battery to first degree murder). The judge granted the motions with the exception of those relating to first and second degree murder, and the defendant excepted.

1. Several of the defendant's assignments (1, 19, 20, 21, 23, 30 and 31) present the question whether the prior indictment and conviction for assault and battery by means of a dangerous weapon bar the present proceedings. Both the common law and our statutes provide that a person may not be twice put in jeopardy for the same offence. See G.L. c. 263, §§ 7, 8, 8A; c. 277, § 75; Commonwealth v. Roby, 12 Pick. 496; Commonwealth v. Burke, 342 Mass. 144, 172 N.E.2d 605. But it is clear that this principle can have no application where, as here, at the time of the first indictment the facts upon which the second indictment is based had not yet occurred. Commonwealth v. Roby, 12 Pick. 496. Diaz v. United States, 223 U.S. 442, 448--449, 32 S.Ct. 250, 56 L.Ed. 500. State v. Littlefield, 70 Me. 452. Commonwealth ex rel. Papy v. Maroney, 417 Pa. 368, 371--372, 207 A.2d 814. See also Commonwealth v. McCan, 277 Mass. 199, 202, 178 N.E. 633, 78 A.L.R. 1208. It is not disputed that Dionisio was still alive at the time of the defendant's conviction for assault and battery by means of a dangerous weapon. In the Diaz case, supra, 223 U.S. p. 449, 32 S.Ct. p. 251, which is similar to the present in all relevant aspects, the Supreme Court of the United States (citing Commonwealth v. Roby, supra) said, 'The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense.' As for the defendant's argument that the second trial put him in jeopardy of a second conviction for the crime of assault and battery, the judge's direction of verdicts for the defendant on all the offences embraced in the indictment other than murder adequately foreclosed this possibility. Commonwealth v. McCan, 277 Mass. 199, 204, 178 N.E. 633, 78 A.L.R. 1208. Diaz v. United States, 223 U.S. 442, 449, 32 S.Ct. 250. State v. Littlefield, 70 Me. 452, 460. The question of autrefois convict was one of law and the judge rightly ruled that the defendant could not argue the point to the jury.

2. In assignments 4 and 5 the defendant challenges the admission of the testimony of two police officers as to a conversation held between one of the officers and the defendant just before his arrest. The rulings complained of occurred in these circumstances. Officer Kelly was asked if he had overheard a conversation between the defendant and Lieutenant Sheehan shortly prior to the defendant's arrest and he replied that he had. He was then asked, subject to the defendant's exception, to state what the conversation was. Officer Kelly testified that Lieutenant Sheehan asked the defendant if he knew him and that the defendant replied, 'No, not again.' The defendant then moved that this evidence be struck and the motion was denied subject to the defendant's exception. Later, subject to the defendant's exception, Lieutenant Sheehan was asked to give his version of the conversation. He testified that he asked the defendant, 'Don't you remember me?' and the defendant said, 'Not you again?' To this Sheehan replied, 'Yes. It has been a long time.' The defendant's motion to strike this evidence was denied, subject to exception.

If this testimony, as the defendant argues, served to inform the jury that the defendant had been involved in some prior criminal activity, its admission over objection was error. Commonwealth v. Stone, 321 Mass. 471, 472--473, 73 N.E.2d 896. Commonwealth v. Welcome, 348 Mass. 68, 201 N.E.2d 827. But the nature and circumstances of any prior meeting suggested by this conversation is obscure and the relevance of this testimony to any of the issues being tried was tenuous at...

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  • Com. v. Carrion
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 17 April 1990
    ...jury or tainted their verdict," Commonwealth v. Simmonds, 386 Mass. 234, 241, 434 N.E.2d 1270 (1982), quoting Commonwealth v. Vanetzian, 350 Mass. 491, 495, 215 N.E.2d 658 (1966). Furthermore, even if the instruction constituted error, it was so insignificant to justify the conclusion that ......
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    ..."raised a sufficient likelihood" that the gun introduced at trial was in fact the one used during the robbery. Commonwealth v. Vanetzian, 350 Mass. 491, 496, 215 N.E.2d 658 (1966).8 There was, in fact, testimony that police officers, between the date of the robbery and the arrest, "were to ......
  • Com. v. Fernette
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 26 November 1986
    ...Golston, 373 Mass. 249, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54 L.Ed.2d 788 (1978); Commonwealth v. Vanetzian, 350 Mass. 491, 215 N.E.2d 658 (1966). The judge here correctly refused the defendant's requested instructions, which were contrary to our law. See Rhoa......
  • Com. v. Carrion
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 17 April 1990
    ...jury or tainted their verdict," Commonwealth v. Simmonds, 386 Mass. 234, 241, 434 N.E.2d 1270 (1982), quoting Commonwealth v. Vanetzian, 350 Mass. 491, 495, 215 N.E.2d 658 (1966). Furthermore, even if the instruction constituted error, it was so insignificant to justify the conclusion that ......
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