Commonwealth v. Baldi

• Decision Date: 09 January 1925
• Citation: 250 Mass. 528,146 N.E. 11
• Parties: COMMONWEALTH v. BALDI et al. (two cases). SAME v. BALDI. SAME v. MARTINO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 528

146 N.E. 11

COMMONWEALTH

v.BALDI et al. (two cases).

SAME

v.BALDI.

SAME

v.MARTINO.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 9, 1925.

Exceptions from Superior Criminal Court, Middlesex County; F. W. Fosdick, Judge.

Hugo Baldi and Bernardo Martino were found guilty of various offenses, recited below, and they except after sentence. Exceptions overruled. Verdicts affirmed.

1. Robbery k24(1)-Evidence held to support verdict of guilty of robbery, being armed.

Evidence that defendant was principal in scheme to rob, and was present when it was executed, held to support verdict of guilty of robbery, being armed.

2. Robbery k24(1)-Evidence held to support verdict of guilt as accessory before the fact of robbery.

Evidence which connected defendant with principal in scheme to rob held sufficient to support conviction as accessory before the fact of robbery.

3. Criminal law k622(2)-Motion to require commonwealth to elect indictment under which it would proceed rightly overruled.

Where defendants were indicted jointly or severally for robbery, being armed, for being accessory before the fact of robbery, for conspiracy to rob, and for receiving stolen goods, there was no error in overruling motion to require commonwealth to elect under which indictment it would proceed, where there was but a single course of criminal conduct, and same evidence in substance would be required to prove such crime.

4. Criminal law k383-Question to prosecuting witness in robbery, as to whether he saw anything indicating that defendant knew men that robbed him, rightly excluded.

Where prosecuting witness, after being taken to certain place by defendant in automobile, was ordered to go to door of icehouse almost immediately on arrival, and defendant disappeared, and prosecutor was bound by others and placed where he could see little of what was going on, and had no opportunity to know whether defendant knew the other men, excluding evidence on cross-examination, as to whether he saw anything indicating that defendant knew any of the five men who robbed him, was without error.

5. Criminal law k413(1)-Self-serving declaration of defendant, in conversation day following robbery, rightly excluded.

There was no error in excluding conversations of defendants on day following robbery, they being self-serving declarations, and not within exceptions to rule excluding them, and not being offered to contradict.

6. Criminal law k361(3)-Evidence negativing effect of defendant's evidence of imprisonment as excuse for not procuring witness rightly received.

Where defendant, in prosecution for robbery, claimed that his imprisonment shortly thereafter was excuse for not procuring defense witness, commonwealth could negative effect of his evidence of imprisonment by showing that he was free to have found witness since release, and that he had not been in another jail.

7. Criminal law k1023(9)-Criminal case may be reported, after verdict of guilty, before sentence; ‘conviction.’

Under G. L. c. 278, s 30, judge of superior court can report case, after verdict of guilty, and before sentence is imposed; ‘conviction,’ as used therein, including judgment following verdict of guilty or confession of guilt, or it may mean verdict of guilty against defendant, or his confession in open court, without judgment or sentence.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Convicted-Conviction.]

R. T. Bushnell, Asst. Dist. Atty. of Boston, for the commonwealth.

W. S. Kinney, of Boston, for defendants.

CARROLL, J.

The defendant Baldi was found guilty and sentenced on an indictment (numbered 9921) charging him with robbery of Dennis Meehan, being armed. The defendant Martino was found guilty and sentenced on an indictment (numbered 9920) charging him as an accessory before the fact to the robbery of Meehan. These two cases are before us on the defendants' bill of exceptions. On two other indictments (numbered 9919 and 9926) the defendants were found guilty. These indictments were then placed on file by order of the judge. Indictment numbered 9919, charging the defendants with conspiracy to commit the crime of robbery from Meehan, and indictment numbered 9926, against Martino for receiving stolen goods, were reported to this court, the evidence in the bill of exceptions being incorporated in the report. These four indictments were tried together with four other indictments, in two of which Baldi was charged with being an accessory after the fact to the murder of John B. Gourard, and in two of which Martino was charged with the same crime. In these four last-mentioned indictments, verdicts were ordered for the defendants. Eight cases were tried together. Before the jury was impaneled the defendants moved that the commonwealth be required to elect upon which of these indictments it would proceed against the defendants. The motion was overruled. The defendants moved at the close of evidence that a verdict of not guilty be ordered in cases numbered 9919, 9926, 9921 and 9920, which motion was denied, the defendants excepting.

In August, 1923, Baldi arranged with one Wortham to furnish 75 cases of Scotch whisky. Baldi, during the two years previous, had several transactions with Wortham involving the sale of liquor. On the night of August 13, Wortham met Baldi in Watertown and went with him to Waltham, where Meehan, from whom Wortham purchased the liquor, met them. The original agreement was to deliver the whisky at Clinton, but on August 13 Baldi notified Wortham to deliver it at Marlboro. There was evidence that Meehan met them at Waltham, both Wortham and Baldi accompanied Meehan in a Packard automobile, driven by Meehan, in which machine were 24 cases of Scotch whisky, and that another car was to follow them. Baldi, Wortham, and Meehan started for Marlborough, and on the trip the car in the rear was lost track of. On arriving at Marlborough, on the main highway where there was a sign, Baldi directed Meehan to turn into a driveway; he drove in this way about 200 yards to an icehouse, and they were met by two men who directed Meehan to drive to the door of the icehouse, Baldi saying he would return to the main highway and look for the other car. When Meehan came to the door, two men armed with drawn revolvers seized Wortham and tied him with ropes; at the same time three other men overpowered Meehan and bound him. Wortham and Meehan were taken to the icehouse and stood against the wall, Meehan being robbed of $2,900 in cash, a couple of card cases, and a pocketknife, the robbers ‘leaving at his request some keys and also leaving a diamond ring worth $500, which he was wearing.’ Wortham was robbed of $3, ‘being left with a little small change.’ About five minutes after this robbery, Baldi was brought into the icehouse tied, and placed against the wall, and in a few minutes was placed in a corner diagonally opposite to Meehan and Wortham. The sound of an approaching automobile was heard. Baldi freed himself from his bonds and freed Wortham and Meehan. A flash light was seen, whereupon Baldi said: ‘Tie me up again; if we are not tied when they come in they will kill us all.’ When Baldi was arrested, $47 in cash, a wallet and razor were found upon him. After his arrest, a gun was found in the sawdust where Baldi had been taken. The next day the 24 cases of Scotch whisky, which were in Meehan's Packard car, were found in Martino's cellar in Newton, covered with automobile robes from Meehan's car, and the Packard car belonging to Meehan was found in Newton, about three-quarters of a mile from Martino's house.

Baldi and Martino were partners in the illegal sale of liquor, although Martino testified that he knew nothing of this particular transaction in question and did not know who put the liquor in his cellar. On cross-examination of Martino, he admitted that he told the police officers that he had not seen Baldi on the afternoon of August 13. There was evidence that Baldi was at Martino's house in Newton on that afternoon; that Martino drove him to a place where Baldi took the car for Watertown, about 30 minutes after 5 o'clock. The evidence showed that the liquor was to be delivered, according to the original arrangement with Wortham, at Clinton to one John Galbo. On August 13, Baldi directed that the liquor be delivered at Marlboro. When Baldi was asked if there was such a person as Galbo he replied, ‘I don't know,’ and also admitted that he had made no effort to find Galbo.

It appeared that the icehouse in question was owned by a company of which John B. Gourard was president. He went to the ice house on the night of August 13 just before Baldi untied himself. Shots were fired, one of them striking Gourard and as a result of which he died. He did not identify either of the defendants. There was evidence for the jury to justify the verdict of guilty on the four indictments upon which the jury passed.

The place of delivery was selected by Baldi, it was not known by Wortham or Meehan. Baldi on August 13 directed that the liquor should be delivered at Marlboro although it was supposed it was to go to Galbo at Clinton. When Baldi was tied up, he was taken to a corner diagonally opposite to Meehan and Wortham and the jury could find that this was done so that Wortham and Meehan could not see him. He alone of the three men was able to untie himself; he requested Meehan and Wortham to tie him again; a gun was found at the spot where Baldi was supposed to be tied. Meehan and Wortham were robbed of nearly everything of value except the ring, which may have been overlooked, while Baldi's funds, consisting of $47, were not taken from him. The stolen liquor was found in his partner's home and near by the automobile of Meehan's was found. Baldi and his partner were together August 13, and Martino drove Baldi to a place where he could take a car for Watertown. Baldi made no effort to locate Galbo who was supposed to live in...