Commonwealth v. Buck

Decision Date29 December 1933
Citation188 N.E. 613,285 Mass. 41
PartiesCOMMONWEALTH v. BUCK.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Barnstable County; Edward F. Hanify, Judge.

Kenneth Buck was convicted of kidnapping, and he excepts.

Exceptions overruled.W. C. Crossley, Dist. Atty., of Fall River, and F. E. Smith, Asst. Dist. Atty., of Boston, for the Commonwealth.

E. Burwick, of Worcester, for defendant.

CROSBY, Justice.

The defendant was charged in two counts of an indictment with forcibly and secretly confining and imprisoning Margaret G. McMath, otherwise called Peggy G. McMath, with intent thereby to extort money from her father, Neil C. McMath. At the trial verdicts of guilty were returned on both counts of the indictment. The case is before this court upon certain exceptions saved by the defendant at the trial.

It is recited in the bill of exceptions that the defendant was arrested upon a complaint made to the Second District Court of Barnstable; that on May 8, 1933, he was arraigned upon a complaint issuing from that court which charged him with the offense of kidnapping; that the defendant pleaded not guilty, and was committed to jail on default of bail, and the case was continued until May 22; that between May 8 and May 22 the grand jury returned the indictment hereinbefore referred to. Upon the return of the indictment the defendant was brought into the Superior Court to plead to the indictment. Before so pleading the district attorney, subject to the defendant's objection, nolle prossed the case pending in the District Court. At the trial and before the jury were empanelled, and before the defendant pleaded to the indictment, he filed a motion to quash the indictment on the ground that there was at that time a complaint pending against him in the District Court charging him with the same crime as set forth in the indictment; that he had pleaded not guilty to the complaint and was in jail awaiting trial on that complaint. The motion was denied subject to the defendant's exception.

G. L. (Ter. Ed.) c. 12, § 27, provides that ‘District attorneys within their respective districts shall appear for the commonwealth in the superior court in all cases, criminal or civil, in which the commonwealth is a party or interested, and in the hearing, in the supreme judicial court, of all questions of law arising in the cases of which they respectively have charge. * * *’ It is a common practice for the grand jury to consider crimes, prosecution for which is pending in district courts. ‘It also has been the custom, in instances where an indictment has been found for the same or a graver offense, for the district court not to try the complaint pending before it.’ Klous v. Judges of Municipal Court of City of Boston, 251 Mass. 292, 295, 146 N. E. 783, 784. A district court has power to order a complaint dismissed. Commonwealth v. Bressant, 126 Mass. 246. Although the statute (G. L. [Ter. Ed.] c. 12, § 27) expressly requires the attendance of the district attorney in the courts of superior jurisdiction, his appearance in district courts within his district is discretionary. It is a common practice for district attorneys to appear in district courts in cases where persons are charged with the commission of serious crimes. It is plain that the district attorney had power to appear for the Commonwealth in the District Court, and where as here the grand jury had returned an indictment against the defendant for the same offense charged in the District Court he could enter a nolle prosequi of the complaint, the effect of which without trial would be like dismissing a complaint. The defendant is not acquitted of the crime charged against him; he is exempted from liability only on that complaint. Commonwealth v. Gould, 12 Gray, 171, Commonwealth v. Bressant, 126 Mass. 246, 247. The action of the district attorney in entering a nolle prosequi in the District Court after an indictment had been found discloses no error of law. Commonwealth v. Wakelin, 230 Mass. 567, 572, 120 N. E. 209,Commonwealth v. Dascalakis, 246 Mass. 12, 18, 140 N. E. 470. We do not imply that if he nolle prosequi had not been entered properly the pendency of the complaint would have been a bar to the trial of the defendant on the indictment.

Following his arrest the defendant made two statements to the officers who were engaged in the investigation of the crime. The first was made in the court house in Barnstable, on May 6, and was offered at the trial as a confession of the defendant. The jury were excluded upon objection of counsel for the defendant, and the testimony was offered through a witness as to the contents of a statement purported to be a confession of the defendant. At the conclusion of the preliminary hearing, the presiding judge ruled, in the absence of the jury, that statements made to the defendant by officer Barrett, who was present, destroyed the validity of the statement as a confession, and that the confession made after the words spoken to him by the officer was involuntary. The judge further ruled that he would admit all statements made by the defendant before the officer made the statements above referred to.

At a later time during the trial one Hall, the chief of police of Harwich, testified that he assisted in the investigation in company with State officers; that on May 9, 1933, he talked with Lawrence Buck, a brother of the defendant, as a result of which on the same day he afterwards talked with the defendant at the house of correction, in the presence of a brother and brother-in-law of the defendant. The Commonwealth then proposed to offer a statement made by the defendant to the witness Hall, and others, which was transcribed by Gertrude Collins, a stenographer, and which the Commonwealth contended was a confession. The defendant objected to the introduction of the statement. The jury then retired and at the conclusion of the proffered testimony the judge ruled in the absence of the jury, after hearing the same witnesses and substantially the same testimony that was later heard by the jury, that the confession was voluntary, and found as a fact that no promise or inducement was made to the defendant to make this confession, and that any inducement that may have been present on May 6 when the former alleged confession was made had ‘lost its force.’ The judge further found that when the second confession was made to Hall relatives of the defendant were present, who had asked the witness Hall to come to Barnstable at the defendant's request, and that nothing appeared ‘which rendered the statement involuntary.’ The judge ruled that it was a voluntary confession; the defendant excepted. After the jury returned, the witness Hall further testified that, at the time the statement was made by the defendant in his presence at the court house in Barnstable, Gertrude Collins was present for the purpose of taking stenographically the defendant's statement, and that he had sent for her to do so. She was the assistant clerk of the Superior Court for Barnstable County. Thereafter she had the defendant sworn. The witness Hall further testified that he told Miss Collins the defendant was going to give a full and true confession without any promise or hope of reward, or without any compulsion or threat, and that he said to the defendant in Miss Collins' presence ‘Is that so?’ and the defendant said ‘Yes.’ The statement was then taken in question and answer form by Miss Collins in the presence of sheriff Crocker, the defendant's brother and the defendant's brother-in-law. At the conclusion of the statement the defendant signed the stenographer's note book. The stenographic notes were later transcribed and the defendant signed the written statement, which was introduced in evidence...

To continue reading

Request your trial
20 cases
  • Com. v. Jones
    • United States
    • Appeals Court of Massachusetts
    • 4 d1 Fevereiro d1 1980
    ...an acquittal but only exempted the defendant from any further liability on the particular complaint involved. Commonwealth v. Buck, 285 Mass. 41, 45, 188 N.E. 613 (1933), and cases cited. Commonwealth v. Rollins, 354 Mass. 630, 632, 241 N.E.2d 809 (1968). The prosecutor has the absolute pow......
  • Com. v. Beaulieu
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 5 d1 Março d1 1956
    ...of guilt is prima facie voluntary. Commonwealth v. Jokinen, 257 Mass. 429, 431, 154 N.E. 189, and cases cited. Commonwealth v. Buck, 285 Mass. 41, 47, 188 N.E. 613. The judge's ruling that art. 31 was not material to the case did not bar the introduction of evidence that the statements were......
  • Lataille v. District Court of Eastern Hampden
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 16 d1 Dezembro d1 1974
    ...Court of Boston, 251 Mass. 292, 146 N.E. 783 (1925). Commonwealth v. Nason, 252 Mass. 545, 148 N.E. 110 (1925). Cf. Commonwealth v. Buck, 285 Mass. 41, 188 N.E. 613 (1933); Burhoe v. Byrne, 289 F.Supp. 408 (D.Mass.1968). Nothing that we have said in the Meyers or Corey cases, or other recen......
  • Commonwealth v. Clark
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 13 d3 Novembro d3 1935
    ... ... 35, 45, 176 N.E ... 501. There was no evidence that the confessions were procured ... by force, threats or promises. The presumption was that they ... were competent. Commonwealth v. Congdon, 265 Mass ... 166, 173, 174, 165 N.E. 467; ... [292 Mass. 412] ... Commonwealth v. Buck, 285 Mass. 41, 47, 188 N.E ... 613. There is nothing in the general exceptions of the ... defendant to the reception in evidence of confessions and ... admissions made by him ...           The ... defendant was called as a witness by his counsel. He answered ... many questions as ... ...
  • Request a trial to view additional results

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