Commonwealth v. Belenski

• Citation: 276 Mass. 35,176 N.E. 501
• Parties: COMMONWEALTH v. BELENSKI (two cases).
• Decision Date: 05 June 1931
• Court: United States State Supreme Judicial Court of Massachusetts

276 Mass. 35

176 N.E. 501

COMMONWEALTH

v.BELENSKI (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

June 5, 1931.

Appeal from Superior Court, Middlesex County; T. J. Hammond, Judge.

Joseph Belenski was convicted of murder in the first degree on two separate indictments tried together, and he appeals.

Judgment on the verdicts.

J. F. Daly, of Boston, for appellant.

F. A. Crafts, Ass't. Dist. Atty., of Boston, for the Commonwealth.

CARROLL, J.

The defendant was convicted on November 26, 1930, of murder in the first degree on two separate indictments tried together. One indictment charged the defendant with the murder of Wincenty Stefanowicz, otherwise called William Stefanowicz. The other indictment charged the defendant with the murder of Stanislawa Stefanowicz, otherwise called Stacia Stefanowicz, the wife of Wincenty Stefanowicz. The bill of particulars filed by the commonwealth in each case specified that the crime was committed between May 20, 1930, and August 10, 1930; that the weapon or instrument used in the commission of the offense was unknown to the commonwealth.

The evidence was as follows: Wincenty Stefanowicz was about fifty-seven years old; the wife was about seven or eight years older than her husband. They lived on a farm in Stow owned by the husband or the husband and wife. The defendant, who was thirty-seven years of age, worked for them as a farm hand and lived with them. Wincenty and Stanislawa Stefanowicz were alive on May 21, 1930. In June inquiries were made as to the whereabouts of the husband and wife, and when the defendant was asked about them he said the husband had gone to Chicago to see a doctor; at another time he said the husband had gone to Chicago and Mrs. Stefanowicz was in Everett; at another time he said she was in Lynn; to another witness he said they had gone to the old country; he said he was going to buy the farm in Stow and also the real estate owned by the Stefanowiczs, in Concord, with $8,000 received from his brother, who had died in New Hampshire, and $2,000 from his insurance. In July, 1930, the defendant sold some of the cattle on the farm in Stow and collected rent for the Concord place. In June he attempted to collect a check payable to William Stefanowicz and at that time said his name was Stefanowicz, stating: ‘I'm the old man's brother.’ The check, payable to William and purporting to be indorsed by him, was later presented to another merchant, the defendant receiving in cash the difference between the amount of the account owed and the face value of the check. In June the defendant said he had received a letter from the Stefanowiczs; that they were sick and he was going to send them some money. On two occasions while Wincenty was alive he had said in the presence of the defendant that the defendant was going to buy the farm. There was also evidence that in July the defendant left the farm, and on his return said he had been to Malden to see Stacia, that she was going to return to the farm on the following Wednesday. The defendant left Stow early in August before the bodies of Mr. and Mrs. Stefanowicz were discovered.

The bodies of Wincenty and Stacia Stefanowicz were found on August 10, 1930, in a shallow grave on the farm; they were badly decomposed and the conditions indicated that several weeks had elapsed between the deaths and the discovery of the bodies. On the body of Wincenty there were several wounds on the neck and head, and the skull was fractured causing death. The body of Stacia disclosed many wounds and bruises; the nose was crushed in; there was ‘a furrow or gully running across the face from one cheek—from the left cheek bone to the right’; the skull was fractured; ‘the right eye forced out of its socket * * * the upper jawbone was broken into pieces.’

The defendant was arrested in Boston on August 12, 1930. He was taken to the district attorney's office and there questioned. Evidence was introduced of the questions put to the defendant and his answers thereto. In the course of this questioning the defendant said his name was Stefanowicz, that he never collected any money for his brother's death, that he did receive $1,000 from the insurance company in May. The defendant also said that his name was Stefanosky, that Wincenty and Stacia Stefanowicz went to Chicago in June. He denied that he knew who put the bodies in the grave. He said at this interview that the Stefanowiczs were killed by a man named John. Later, he said that on Sunday morning about eleven o'clock he killed Wincenty Stefanowicz with a stick because he refused to pay $200 that he owed the defendant; that Mr. Stefanowicz heard the quarrel and came to the cow pasture where the defendant and her husband were, and he struck the woman with the stick; that after he killed them he dug the grave and buried them. At the trial the defendant testified that on the second Monday in June he heard Mrs. Stefanowicz ‘hollering ‘Joe”; that he went to the kitchen and saw her ‘lying down in a pool of blood’; that her husband had ‘the iron piece in his hand’ and he said to the husband ‘What are you doing? What are you fighting for’; that the husband fired a shot at him and stuck him with the gun; that he ‘pulled away that gun from him’; that Stefanowicz then attacked him with a knife and he killed Stefanowicz in self defence. On cross-examination the defendant testified he did not remember the answers made by him when questioned in the district attorney's office.

The theory of the commonwealth was that the defendant desired to obtain the farm; that he had no money with which to buy it; that he deliberately planned to kill the Stefanowiczs, do away with the bodies, and claim to be the owner of the property. A view was taken of the farmhouse, the outlying buildings, and the grave. The assignments of error will be considered in the order in which they are argued on the defendant's brief.

[1][2] 1. The first assignment of error is based on the refusal of the judge to permit the date of the filing of the bill of particulars to be read to the jury on the ground that the date of the filing was immaterial. This ruling was correct. The reason for allowing a defendant to obtain a bill of particulars is to inform him fully of the nature of the offense. G. L. c. 277, § 40; Commonwealth v. Snell, 189 Mass. 12, 19, 75 N. E. 75,3 L. R. A. (N. S.) 1019;Commonwealth v. Jordan, 207 Mass. 259, 265, 93 N. E. 809;Commonwealth v. Sacco, 255 Mass. 369, 412, 151 N. E. 839. The reading to the jury of the date of the filing of the bill of particulars would not serve any purpose for which bill of particulars is intended, nor was the date material to the defence.

2. The next assignment of error relates to the refusal of the judge to permit the defendant to accompany the jury on the view. This refusal was within the sound discretion of the trial judge. The entire subject of a defendant's reight to accompany a jury on a view was fully considered in Commonwealth v. Dascalakis, 246 Mass. 12, 28–31, 140 N. E. 470. There was no error in this ruling.

[4] 3. This assignment of error is based on exceptions five, six and seven. A witness testified that Stefanowicz was indebted to him in the sum of $150. Counsel for the defendant was permitted to ask the witness on cross-examination whether prior to August 10, the date when the bodies were discovered, he caused a keeper to be placed on the premises for the purpose of collecting the debt owed him by Stefanowicz. The judge refused to allow the defendant's counsel to inquire whether after August 10 the witness caused a keeper to be placed on the premises. There was no error in this refusal, it had no relevancy to any issue in the case, and it was within the discretion of the judgment to exclude it. Commonwealth v. Corcoran, 252 Mass. 465, 486, 148 N. E. 123;Commonwealth v. Kinght, 257 Mass. 421, 425, 154 N. E. 91.

4. The assignment of error based on exceptions eight and nine refers to questions sought to be asked by the counsel for the defendant. The questions were allowed. The conference at the bench beyond the hearing of the jury related merely to the proper phrasing of the questions and was intended to prevent confusion in the minds of the jury.

[5] 5. During the trial the commonwealth offered the alleged confession of the defendant. The defendant objected to its admission on the ground that it was involuntary. A preliminary hearing was held in the absence of the jury. Apparently there was only one copy in the possession of the district attorney. The trial judge proposed to read the report first, the defendant's counsel objected to this and asked for the privilege of reading it before the judge read it. The judge then handed the copy to counsel for the defendant to read but refused to permit the associate counsel to read it. The judge might have allowed the associate counsel to read it. But it is not shown that the defendant was deprived of any of his substantial rights by this ruling. It was an incident in the conduct of the trial properly subject to the judge's power of regulation. Commonwealth v. Coyne, 228 Mass. 269, 270, 117 N. E. 337, 3 A. L. R. 1209. See Commonwealth v. Dorr, 216 Mass. 314, 319, 103 N. E. 902. Having fully complied with the request of counsel as to the order of procedure, the judge could in his discretion insist that counsel abide by the limitations of his own request.

[7][8] 6. The assignment of error raised by exceptions thirteen and fourteen, and by assignment two of additions to summary of record, relates to the confession of the defendant. At the preliminary hearing the judge found that the defendant in making the confession was not induced to do so by threats or promises or inducements. It appeared that the defendant was warned that anything he might say would be used against him in court. Subsequently the confession was submitted to the jury. The proper procedure was followed by the judge. Commonwealth v. Russ, 232...