Commonwealth v. Chiovaro

• Decision Date: 07 October 1880
• Citation: Commonwealth v. Chiovaro, 129 Mass. 489 (Mass. 1880)
• Parties: Commonwealth v. Saro Chiovaro
• Court: Supreme Judicial Court of Massachusetts

129 Mass. 489

Commonwealth v. Saro Chiovaro

Supreme Court of Massachusetts

October 7, 1880

Suffolk. Indictment for murder, consisting, besides the usual caption and signatures, of the following allegations:

"The jurors for the Commonwealth of Massachusetts on their oath present, that Nicolo Infantino, otherwise called Nick otherwise called the boy, and Antonio Ardito, otherwise called the Greek, on the fourteenth day of August in the year of our Lord one thousand eight hundred and seventy-nine, at Boston aforesaid, in and upon one Joseph F. Frye feloniously, wilfully and of their malice aforethought did make an assault; and that the said Infantino and the said Antonio a certain pistol, then and there charged with gunpowder and one leaden bullet, then and there feloniously wilfully and of their malice aforethought did discharge and shoot off to, against and upon the said Frye; and that the said Infantino and the said Antonio, with the leaden bullet aforesaid out of the pistol aforesaid then and there by the force of the gunpowder aforesaid by the said Infantino and the said Antonio discharged and shot off as aforesaid, then and there feloniously, wilfully and of their malice aforethought did strike, penetrate and wound the said Frye, in and upon the left side of the said Frye, giving to the said Frye then and there, with the leaden bullet aforesaid so as aforesaid discharged and shot out of the pistol aforesaid by the said Infantino and the said Antonio, in and upon the left side of the said Frye, one mortal wound, of which said mortal wound the said Frye then and there instantly died.

"And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Infantino and the said Ardito the said Frye, in manner and form aforesaid, then and there feloniously, wilfully and of their malice aforethought did kill and murder:

"Against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.

"And the jurors aforesaid for the Commonwealth of Massachusetts, on their oath aforesaid, do further present, that Nicolo Infantino, otherwise called Nick, otherwise called the boy, and Antonio Ardito, otherwise called the Greek, on the fourteenth day of August in the year of our Lord one thousand eight hundred and seventy-nine, at Boston aforesaid, in and upon one Joseph F. Frye, feloniously, wilfully and of their malice aforethought did make an assault; and that the said Infantino and the said Ardito a certain pistol, then and there charged with gunpowder and one leaden bullet, then and there feloniously, wilfully and of their malice aforethought did discharge and shoot off, to, against and upon the said Frye; and that the said Infantino and the said Ardito, with the leaden bullet aforesaid out of the pistol aforesaid then and there by the force of the gunpowder aforesaid by the said Infantino and the said Ardito discharged and shot off as aforesaid, then and there feloniously, wilfully and of their malice aforethought did strike, penetrate and wound the said Frye, in and upon the left side of the said Frye, giving to the said Frye then and there, with the leaden bullet aforesaid so as aforesaid discharged and shot out of the pistol aforesaid by the said Infantino and the said Ardito, in and upon the left side of the said Frye, one mortal wound, of which said mortal wound the said Frye then and there instantly died.

"And the jurors aforesaid, upon their oath aforesaid, do further present, that Saro Chiovaro, otherwise called Nino Antonio, otherwise called Larry O'Neil, Vincenzo Bandiera, otherwise called Charley Frost, and Giuseppe Donato, otherwise called Joseph Donato, before the said felony and murder was committed in manner and form aforesaid, to wit, on the fourteenth day of August in the year aforesaid, were accessories thereto before the fact, and then and there feloniously, wilfully and of their malice aforethought did counsel, hire and procure the said Infantino and the said Ardito the felony and murder aforesaid, in manner and form aforesaid, to do and commit:

"Against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided."

To this indictment the principals pleaded guilty of murder in the second degree. The present defendant pleaded guilty as accessory before the fact of murder in the second degree, and afterwards moved in arrest of judgment "that no offence known to the law is fully and plainly, substantially and formally, set forth and described to him in and by said indictment, as required by law."

This motion was argued before Gray, C. J. and Endicott, J., who were of opinion that it should be overruled, but, at the request of the defendant, reserved the questions of law arising thereon for the determination of the full court, and for the entry of such judgment as law and justice might require.

Motion in arrest of judgment overruled, and the defendant sentenced for murder in the second degree.

I. S. Morse, for the defendant.

G. Marston, Attorney General, & F. H. Gillett, Assistant Attorney General, for the Commonwealth.

Lord, J. Morton & Endicott, JJ., absent.

OPINION

Lord, J.

The indictment upon which the defendant is held begins with charging against one Infantino and one Ardito the murder of Joseph F. Frye, setting out all the facts and all the legal conclusions necessary to a proper indictment for the crime of murder with technical accuracy and precision. It then recites over again all the facts which are necessary to constitute the crime of murder, and alleges that the acts charged were committed by the two persons before named. It then concludes by alleging that the present defendant and two other persons named, "before the said felony and murder was committed in manner and form aforesaid, to wit, on the fourteenth day of August in the year aforesaid, were accessories thereto before the fact, and then and there feloniously, wilfully and of their malice aforethought did counsel, hire and procure the said Infantino and the said Ardito the felony and murder aforesaid, in manner and form aforesaid to do and commit: against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided."

If this last allegation (omitting the words "were accessories thereto before the fact and") had immediately followed the charge against the principals, the indictment would have substantially conformed to approved precedents, and would have sustained a conviction both of the principals and of the accessories of the crime of murder. Sanchar's case, 9 Rep. 114 a. Stark. Crim. Pl. (2d ed.) 35, 398, 481. Commonwealth v. Bowen, 13 Mass. 356; S. C. cited 123 Mass. 427, 428. Commonwealth v. Knapp, 10 Pick. 477; S. C. more fully reported, Knapp's Second Trial (Salem ed. 1830) 8. Sampson v. Commonwealth, 5 Watts & Serg. 385. The only embarrassment in this case has been created by the separation of the charge against the accessories from the charge against the principals, and by the unnecessary repetition, by way of preface to the charge against the accessories, of the facts necessary to constitute the crime of murder.

The words with which this repetition is introduced, "And the jurors aforesaid for the Commonwealth of Massachusetts, on their oath aforesaid, do further present," do not necessarily denote a new count. In indictments containing two or more counts, such words are indeed prefixed to each count subsequent to the first. Stark. Crim. Pl. 376. But they are also often used, in indictments containing but one count, merely to begin a new paragraph or sentence, either as introductory to the supplemental charge against an accessory, after fully setting forth the charge against the principal, or for the apparent purpose of interrupting the continuity of narrative, so as to arrest the attention and fix it upon such circumstances as are essential elements of the crime charged. Stark. Crim. Pl. 479, 481, 482, 542, 545-549, 562, 571 & seq., passim. 1 Chit. Crim. Law, 176. Commonwealth v. Glover, 111 Mass. 395. Commonwealth v. Cohen, 120 Mass. 198.

If this indictment should be treated as containing a single count, the unnecessary repetition of the facts and circumstances, as well as the superfluous words "were accessories before the fact," might be rejected as surplusage, leaving the indictment complete in all respects against the accessories as well as the principals. The King v. Morris, 1 Leach (4th ed.) 109. The Queen v. Crespin, 11 Q. B. 913. Commonwealth v. Hunt, 4 Pick. 252. Commonwealth v. Randall, 4 Gray 36. But we have preferred to consider it (as it was treated in the argument for the defendant, and so as to give him the full benefit of his objections) as containing two counts, the one against the principals, and the other against the accessories.

Assuming that the charge against the accessories constitutes a distinct count, then, although in this count every fact which is necessary to constitute the crime of murder is alleged to have been committed by the principals, with all technical precision in form and in substance, yet the legal effect of those facts, which it is necessary to state, and which is ordinarily stated in the language which is used in the previous allegation, "And so the jurors aforesaid, upon their oath aforesaid, do say that the said Infantino and the said Ardito the said Frye, in manner and form aforesaid, then and there feloniously, wilfully and of their malice aforethought did kill and murder," is omitted. Anon. Dyer, 304, pl. 56. 2 Hale P. C. 186, 344. Foster's Crown Law, 424. 2 Hawk. c. 25, § 55. 3 Chit. Crim. Law, 737, 751. Commonwealth v Davis, 11 Pick. 432, 438. Commonwealth v. Sanborn, 14 Gray 393, 394. Commonwealth v. Desmarteau, 16...