Commonwealth v. D'Amico

• Decision Date: 03 February 1926
• Citation: 254 Mass. 512,150 N.E. 321
• Parties: COMMONWEALTH v. D'AMICO (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 512

150 N.E. 321

COMMONWEALTH

v.D'AMICO (two cases).

Supreme Judicial Court of Massachusetts, Essex.

Feb. 3, 1926.

Exceptions from Superior Court, Essex County.

Sebastiano D'Amico was tried for selling, and exposing and keeping for sale, intoxicating liquors, and he excepts to rulings on motion for separate trials, evidence, and instructions. Exceptions overruled.

W. G. Clark, Dist. Atty., of Gloucester, and E. F. Flynn, Asst. Dist. Atty., of Lynn, for the Commonwealth.

Cregg & Cregg, of Lawrence, for defendant.

WAIT, J.

Complaint against the defendant was made July 1, 1924, alleging that on or about May 10, 1924, at Lawrence, he sold unlawfully a quantity of intoxicating liquor to Peter Golden. Another complaint against him was made October 7, 1924, alleging that on that day, at Lawrence, he exposed and kept for sale intoxicating liquors with intent unlawfully to sell them. When the cases were called for trial in the superior court, the district attorney requested that they be tried together. The defendant objected, and moved in writing in each case that it be tried apart from the other. The request of the district attorney was granted. The defendant's motions were denied. The defendant excepted and asks that his exceptions be sustained.

[1] The power of the trial court, where there are several offenses of the same general nature which might have been charged in separate counts in the same indictment or complaint and settled by a single trial without requiring the prosecutor to elect, to order them to be tried together is well established by the decision in Commonwealth v. Slavski, 245 Mass. 405, 140 N. E. 465, 29 A. L. R. 281, and Commonwealth v. Rosenthal, 211 Mass. 50, 97 N. E. 609, 47 L. R. A. (N. S.) 955, Ann. Cas. 1913A, 1003, which, on this point have, in substance, overruled Commonwealth v. Bickum, 153 Mass. 386, 26 N. E. 1003, where such a practice was disapproved.

The considerations to be weighed by the trial judge in exercising his discretion so to order are adequately stated in Commonwealth v. Slavski, supra, at page 412 (140 N. E. 467):

‘It is the heavy obligation of the trial court sedulously to take care that the defendant is not confounded in his defense, that the attention of the jury is not distracted, and that in no aspect are the substantive rights of the defendant adversely affected, by requiring him to proceed to trial on separate complaints for different offenses or on separate counts for different offenses in one complaint.’

The bill of exceptions does not disclose the statements which were made to the presiding judge at the hearing on the motions. On their face, the complaints are exactly within the decision in Commonwealth v. Slavski, supra. Nothing appears to indicate any abuse of the discretionary power in making the order in these cases.

[2][3] The evidence of Golden that the substance which he purchased from the defendant was alcohol, an intoxicating liquor, was competent. Testimony from an expert is not necessary. Commonwealth v. Timothy, 8 Gray, 480. There was evidence of a sale of alcohol, an intoxicating liquor, at the place and time charged. The weight of it was for the jury. The ruling requested was denied properly.

On the second complaint there was evidence that police officers searching a two-story building on Common street, Lawrence, on the ground floor of which the defendant carried on an undertaking business in...