Commonwealth v. Borasky

Decision Date01 April 1913
PartiesCOMMONWEALTH v. BORASKY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 313
101 N.E. 377

COMMONWEALTH
v.
BORASKY.

Supreme Judicial Court of Massachusetts, Hampden.

April 1, 1913.


Exceptions from Superior Court, Hampden County; Henry A. King, Judge.

Stefan Borasky was convicted of murder, and brings exceptions. Exceptions overruled.


Christopher [214 Mass. 322]T. Callahan, Dist. Atty., of Holyoke, for the commonwealth.

Jos. F. Carmody, of Springfield, for defendant.


[214 Mass. 315]RUGG, C. J.

The indictment charged the defendant and one Antone Kolek with having committed the crime of murder by [214 Mass. 316]killing Rose Amansky. Both were convicted, but Kolek has deceased. It does not appear to have been disputed at the trial that the woman was murdered.

[1][2] 1. Borasky seasonably filed a motion that he should have a separate trial on the

[101 N.E. 379]

grounds that there would probably be introduced in evidence a written confession made by Kolek, which implicated both defendants, and that, as he had been unable to obtain a copy, the court should order the commonwealth to furnish a copy, in order that it might be annexed to his motion. At the argument in support of the motion the judge was requested to examine the confession in the presence of the district attorney, and in the absence of the defendant Borasky or his counsel. There was no error in the denial of the motion. Whether two defendants indicted jointly shall be tried together is discretionary with the trial court. This has been decided many times respecting the trial of crimes involving a punishment less than capital. Com. v. Robinson, 1 Gray, 555, 560;Com. v. Thompson, 108 Mass. 461;Com. v. Miller, 150 Mass. 69, 22 N. E. 434;Com. v. Bingham, 158 Mass. 169, 33 N. E. 341;Com. v. Bishop, 165 Mass. 148, 42 N. E. 560;Com. v. Seeley, 167 Mass. 163, 45 N. E. 91. In Com. v. James, 99 Mass. 438, it was stated, in the course of a trial for murder heard by the full court sitting in banc for the trial of two defendants jointly indicted for murder, that ‘the general rule is that persons jointly indicted should be tried together.’ The confession was there regarded as presenting ‘an exceptional case’ and it was intimated that a separate trial would be granted if the commonwealth intended to offer the confession. It was not offered and was withdrawn by the commonwealth, and a joint trial was had. It does not appear that the intimation there was thrown out in any other way than as the exercise of discretion. That such a motion is not to be granted as of right but rests in the sound judicial discretion of the trial court, even in capital cases, is the rule in the federal courts. United States v. Marchant, 12 Wheat. 480, 6 L. Ed. 700;U. S. v. Ball, 163 U. S. 662, 672, 16 Sup. Ct. 1192, 41 L. Ed. 300. There is nothing in the case at bar to indicate any abuse of discretion. Plainly, the court was not required to examine the alleged confession in the presence of the [214 Mass. 317]district attorney and in the absence of counsel for the defendant. During the trial the court was scrupulous to advise the jury, whenever any statements made by Kolek in the absence of Borasky implicating the latter were offered in evidence, that they were not to be considered against Borasky.

[3] 2. William E. Stibbs, called as a juror, stated in reply to one of the usual questions put by the court that he was prejudiced in favor of capital punishment. Further questions by the court developed that the juror would favor conviction only if guilt was established on the evidence beyond a reasonable doubt. At the conclusion of the examination the court said: ‘I don't see as your prejudice amounts to anything.’ This fairly summarizes the result of the answers of the juror. He was then sworn. After the panel was completed and all the jurors sworn, counsel for the defendants asked that the juror Stibbs be challenged for cause, for the reason that they had not understood his answer that he was in favor of capital punishment. The ancient and common statement in court touching the right of challenge is that it must be exercised before the juror is sworn. See Com. v. White, 208 Mass. 202, 208, 94 N. E. 391. But without placing the decision on that ground, it is plain that the juror was indifferent in law, that he had no knowledge from any source as to the case, and that his answer only meant a firm belief in capital punishment in cases in which it is provided by law. This is far from disqualification in a juror. Com. v. Abbott, 13 Metc. 120.

[4] 3. An autopsy was performed by the medical examiner of which a record was made. R. L. c. 24, § 9, and section 10 as amended by St. 1909, c. 273, § 1. The defendant, Borasky, objected to the testimony of the physician, who performed the autopsy, as to his observations, on the ground that the record was the best evidence. This objection was overruled properly. The testimony of the witness who was present and observed the condition revealed by the autopsy was admissible. Com. v. Dunan, 128 Mass. 422.

[5][6] 4. There was testimony tending to show that a check taken from the body of the murdered woman was procured to be cashed by one of the defendants. Her daughter-in-law, Minnie Amansky, who could neither read nor write...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT