Commonwealth v. Bellino

• Decision Date: 03 March 1947
• Citation: 71 N.E.2d 411,320 Mass. 635
• Parties: COMMONWEALTH v. BELLINO et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

320 Mass. 635

71 N.E.2d 411

COMMONWEALTH

v.BELLINO et al.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 8, 1947.

Writ of Certiorari Denied March 3, 1947.

See 67 S.Ct. 872.

Philip R. Bellino and Edward F. Gersten were convicted of murder in the first degree and they appeal.

Affirmed.Appeals from Superior Court, Essex County; Hurley, Judge.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and RONAN, JJ.

J. W. Eastman, A. N. Illman, M. E. Viola and A. R. Shrigley, all of Boston, for defendants.

H. A. CREGG, Dist. Atty., of Methuen, and J. J. Ryan, Jr., Asst. Dist. Atty., of Haverhill, for Commonwealth.

QUA, Justice.

Philip R. Bellino and Edward F. Gertsen were jointly indicted for the murder of Robert Williams at Lynn on August 7, 1945. Upon trial, both were found guilty in the first degree, and both have been sentenced to death.

The killing occurred in the nighttime on what is known as the Lynn marshes. The victim, the two defendants, and one Mantia, who pleaded guilty to an indictment as an accessory after the fact, went to the locality in a taxicab. While Mantia remained in the taxicab with the driver, Williams and the two defendants proceeded on foot some distance away from the road and out on the marsh, where the defendant Bellino shot Williams in the back. The shirt worn by the deceased was found beside the body. There was no bullet hole in it. All the evidence, including the testimony of the two defendants, was to the effect that the shirt had been taken off before the shooting, although there was a dispute as to the circumstances in which it had been taken off.

It was the contention of the Commonwealth that the two defendants had enticed Williams out upon the marsh for the purpose of killing him for the reason that they feared that Williams would give information to the police about a ‘hold-up’ in New Hampshire a few days before in which the defendants had taken part and in which a man had been shot. It was the contention of the defendants that they had reluctantly gone with Williams on the marsh to look for a ‘hot’ number plate that he had left there; that while they were there an altercation arose; that Williams attacked the defendants and shot at them; and that thereupon Bellino shot Williams in self-defence.

1. The medical examiner, called by the Commonwealth, testified that there was in the middle of the back of the deceased a small bullet wound; that ‘there was very little powder marks outside but there was a ring which could have been made by the muzzle * * * or the jacket of a gun’; that ‘Beneath the skin was this fairly wide cavity which was blackened and filled pretty much with burnt powder * * *’; that ‘there was quite a cavity below the skin which was blackened and covered with burnt powder fragments'; that the powder marks on the outside were ‘just speckles'; that the ring was ‘interrupted’ and about a half inch in diameter; and that there was very little powder on the skin. Thereafter, subject to exception, the witness was allowed to testify that there was at least some powder on the skin about the wound; that the black of the powder was underneath the skin; and that in his opinion the muzzle of ‘the gun was directly on the skin.’

The defendants assign error in that the medical examiner was not sufficiently qualified as an expert to testify that the marks in or about the wound were caused by powder or that the muzzle of the gun was directly on the skin of the deceased. Bearing on qualification, there was evidence that the witness had been a practising physician, specializing in surgery; that he had been a medical examiner for fifteen years; that he had operated perhaps three times on persons with gun shot wound, including the type inflicted at close range and the type inflicted at long range; that as medical examiner he had looked at quite a number-about fifteen-bodies where death had been caused by bullet or shot gun wounds, of which about fourteen were bullet wounds; that he believed about eight of these were from bullets fired at close range, all of which, however, were fired through clothing; that he had examined, he should say, six bullet wounds in a nude part of the body, some of these being in the head; but that he had never examined a body where the bullet entered the back of an individual without any clothing.

The defendants argue that the witness was not qualified because it did not appear that he had ever seen a wound from a bullet fired at close range that had not passed through clothing. Assuming that the presence or absence of clothing might affect the appearance of a wound from a bullet fired at close range, we think it clear, nevertheless, that the professional experience of the witness, particularly with respect to wounds from bullets, both those fired at long range and those fired at short range, would place him in a better position than the average juryman to form conclusions whether the ‘speckles' observed by him outside the wound and the black appearance under the skin were due to powder and as to the position of the gun when the bullet was fired. Commonwealth v. Rogers, 7 Metc. 500, 504, 505,41 Am.Dec. 458;Commonwealth v. Sturtivant, 117 Mass. 122, 19 Am.Rep. 401. A witness' training and experience may well qualify him to give an opinion in reference to a problem which he has never before encountered in precisely the same form. Hardiman v. Brown, 162 Mass. 585, 39 N.E. 192. The conclusion of the trial judge that a witness is competent to express an opinion upon a particular matter can be disturbed only where there is no evidence to warrant that conclusion. Commonwealth v. Spencer, 212 Mass. 438, 448, 99 N.E. 266, Ann.Cas. 1913D, 552;Guinan v. Boston Elevated Railway, 267 Mass. 526, 167 N.E. 247;Corrao v. Sears, Roebuck & Co., 298 Mass. 23, 26, 9 N.E.2d 378;Commonwealth v. Dawn, 302 Mass. 255, 258, 19 N.E.2d 315;Commonwealth v. Capalbo, 308 Mass. 376, 380, 32 N.E.2d 225. There was no error in allowing the medical examiner to testify as he did.

2. The defendants assign error in that at the beginning of the trial the judge ordered a jury of fourteen members to be impaneled, and at the time of the final submission of the case to the jury he discharged two of those originally impaneled and submitted the case to the remaining twelve, all in accordance with G.L.(Ter.Ed.) c. 234, § 26B, inserted by St.1945, c. 428, § 1. The defendants contend that the procedure under this statute has deprived them of the right of trial by jury as secured to them by art. 12 of the Declaration of Rights. See also art. 15. They further contend that this statute, effective after the alleged commission of the crime for which they were indicted, is as to them an ex post facto law which art. 1, § 10, of the Constitution of the United States forbids any State to pass.

Section 26B reads as follows: ‘In a civil case, or in a criminal case, including a capital case, to be tried with a jury in the superior court which in the opinion of the court is likely to be protracted, the court may so certify and may order impaneled a jury of not exceeding fourteen members and the court shall have jurisdiction to try the case with such jury subject to the following provisions of this section. If at the time of the final submission of the case by the court to the jury more than twelve members of the jury who have heard the whole case are alive and not incapacitated or disqualified, the court shall direct the clerk to place the names of all of the remaining jurors, except the foreman, in a box and draw the names of a sufficient number to reduce the jury to twelve members, and the court shall thereupon discharge the jurors whose names are so drawn, and the court shall have jurisdiction to receive the verdict of the twelve remaining members of the jury whose names have not been so drawn and shall have jurisdiction to render judgment in said case.’

We see nothing in this statute that contravenes the provisions of the Declaration of Rights for the preservation of trial by jury. Undoubtedly it was intended that the substance of ‘This method of procedure’ as practised when the Constitution was adopted should ‘Be held sacred’. Art. 15. The substance of the right to be tried by jury consists of those elements in that method of trial which tend to protect the citizen against arbitrary power and to ensure to him that issues of fact shall be determined by the composite judgment of a fairly numerous and representative body of impartial residents of the county selected at large rather than by the judgment of one or of a small number of single individuals who may be subject to peculiar prejudices or whose station and personal experiences in life may have failed to provide them with sufficient understanding of the conditions and circumstances in which the parties acted. Whatever tends in any appreciable degree to impair the essentials of the right must be struck down. But it has always been understood that the constitutional declaration of the right to trial by jury, like other constitutional declarations of right, was the enunciation of a broad, living principle capable of reasonable adaptation to a constantly changing society and not a barren congealing into rigidity of existing forms, which, with the alteration of time and circumstance, might even become clogs upon the exercise of the right itself. In Commonwealth v. Dorsey, 103 Mass. 412, at page 418, this court said, ‘But the method of selecting jurors is left by the Constitution to be regulated by legislative enactments; and these may be modified from time to time as the legislature shall think proper.’ And again on page 419, this court said, ‘Many changes have been made by legislative acts in respect to the qualifications of jurors, the methods of selecting and summoning them, and of forming a panel, which differ materially from the ancient practice, and it has not been supposed that the Constitution was violated by such provisions.’ The validity of...