Commonwealth v. Bellino

Citation320 Mass. 635,71 N.E.2d 411
CourtUnited States State Supreme Judicial Court of Massachusetts
Decision Date08 January 1947
PartiesCOMMONWEALTH v. PHILIP R. BELLINO & another.

December 2, 30 1946.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & RONAN, JJ.

Witness, Expert. Constitutional Law, Trial by jury, Ex post facto law. Jury and Jurors. Practice, Criminal, Mistrial, Judicial discretion, Appeal with assignment of errors, Capital case New trial.

A finding by a judge presiding at a trial for murder of a man shot in the back when he was not wearing a shirt, that the evidence showed that a medical examiner was qualified to state his opinion as an expert witness that there was powder in and about the wound and that the muzzle of the lethal weapon had been directly on the skin of the murdered man, was warranted although it did not appear that the witness ever had seen a wound from a bullet fired at close range that had not passed through clothing. Conduct of a capital trial pursuant to Section 26B, inserted in G. L. (Ter.

Ed.) c. 234 by St 1945, c. 428, Section 1, violates no provision of the Declaration of Rights for the preservation of trial by jury. Section 26B, inserted in G. L. (Ter. Ed.) c. 234 by St. 1945 c. 428,

Section 1, as applied at a trial for an alleged murder committed before its effective date, was not an ex post facto law forbidden by art. 1,

Section 10, of the Federal Constitution.

There was no abuse of discretion nor error in denial of a motion by the defendant at a murder trial for a declaration of mistrial on the ground that, although a record of his conviction of robbery had been excluded because exceptions with respect thereto were still pending, he had been prejudiced by a previous admission in evidence, as a foundation for the introduction of such record, of testimony by him in cross-examination in which he had admitted that he was the man who had been charged with and found guilty of the robbery, the judge later having instructed the jury to disregard all such testimony. General Laws (Ter. Ed.) c. 278, Section 33E, as amended by St. 1939, c.

341, does not require this court to review all questions of evidence and of procedure at the trial as to which exceptions have not been duly saved, preserved, and prosecuted, in order that this court may ascertain whether somewhere some successful objection might have been taken and prosecuted but was not: it is still the duty of defendants who wish to preserve points of law to take seasonable exceptions and to file adequate assignments of error according to the procedure provided for in

Sections 33A-33G.

INDICTMENT, found and returned on January 17, 1946. The indictment was tried before Hurley, J.

J. W. Eastman, (A.

N. Illman, M.

E. Viola & A. R. Shrigley with him,) for the defendants.

H. A. Cregg, District Attorney, (J.

J. Ryan, Jr., Assistant District Attorney, with him,) for the Commonwealth.

QUA, J. 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 wounds, 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 Met. 500, 504-505. Commonwealth v. Sturtivant, 117 Mass. 122 . A witness's 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 . 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. Guinan v. Boston Elevated Railway, 267 Mass. 526 . Corrao v. Sears, Roebuck & Co. 298 Mass. 23 , 26. Commonwealth v. Dawn, 302 Mass. 255 , 258. Commonwealth v. Capalbo, 308 Mass. 376 , 380. 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 empanelled, and at the time of the final submission of the case to the jury he discharged two of those originally empanelled and submitted the case to the remaining twelve, all in accordance with G. L. (Ter. Ed.) c. 234, Section 26B, inserted by St. 1945, c. 428, Section 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, Section 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 impanelled 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...

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