Commonwealth v. Dascalakis

• Decision Date: 22 June 1923
• Citation: 140 N.E. 470,246 Mass. 12
• Parties: COMMONWEALTH v. DASCALAKIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 12

140 N.E. 470

COMMONWEALTH

v.DASCALAKIS.

Supreme Judicial Court of Massachusetts, Suffolk.

June 22, 1923.

Appeals and Exceptions from Superior Criminal Court, Suffolk County; Patrick M. Keating, Judge.

Paul Dascalakis, alias Paul Pappas, was convicted of murder in the first degree. To review certain proceedings after sentence, he appeals and brings exceptions. Appeals dismissed, and exceptions overruled.

See, also, 137 N. E. 879.Henry P. Fielding, Asst. Dist. Atty., of Dorchester, for the commonwealth.

John P. Feeney, of Boston, for defendant.

RUGG, C. J.

The defendant was convicted of murder in the first degree by verdict returned on June 15, 1922. Motion for new trial was filed and after hearing was denied on June 23, 1922. Exceptions were taken to rulings made at the trial. These were overruled by rescript received in the superior court on January 9, 1923. The defendant was then on January 16, 1923, sentenced to death. On that date warrant issued for the execution of the sentence, which was delivered to the sheriff. Copy thereof was sent to the warden of the state prison, and certified copy of the whole record including sentence was delivered to the Governor of the commonwealth. G. L. c. 279, §§ 43, 44, 45, 46.

Subsequent proceedings have occurred in court. The execution of the sentence has been respited by the Governor until July 11, 1923. On March 21, 1923, motion for new trial on the ground of newly discovered evidence was filed by leave and denied on the following day. On March 23, 1923, a writ of error issued. That was heard by the full court and on April 16, 1923, its order was entered that the judgment stand.

Up to this time the defense had been conducted by an attorney or attorneys appointed by the court. Thereafter different counsel represented the defendant. He filed on April 27, 1923, another motion for a new trial, and amendments to that motion were filed on April 28, 1923.

On May 1, 1923, the defendant filed a motion to revoke the sentence imposed on January 16, 1923, on the ground that on April 28, 1923, a nolle prosequi of that part of the indictment charging murder in the first degree had been filed and entered. Concerning the merits of this motion an agreed statement of facts was filed in lieu of evidence. The substance of these facts is that on April 28, 1923, the district attorney and the attorney for the defendant conferred with the judge who presided at the trial of the defendant, in consequence of which suggestion was made by the district attorney that the sentence be revoked, a nolle prosequi be entered of so much of the indictment as charged a higher crime than second degree murder, and the sentence required for murder in the second degree be imposed. The judge expressed a tentative purpose to follow the procedure in another case, papers in which were sent for and examined, wherein it was thought that a somewhat analogous course had been pursued. Counsel then withdrew. The district attorney signed a form of nolle prosequi to so much of the indictment as charged a higher crime than murder in the second degree, but asking for sentence on that part of the indictment which charged murder in the second degree. Then defendant signed a statement of consent to the action of the district attorney, but without prejudice to any right he might have to petition for pardon on the ground of innocence. Both counsel later returned to conference with the judge, to whom the two signed papers were presented. He then stated that the present defendant had been sentenced, differing in that respect from the case referred to at their earlier conference, which at first he had been inclined to follow, and that the motion for a new trial should be heard and considered. The form of nolle prosequi and the statement signed by the defendant were returned, the former to the district attorney and the latter to the counsel for the defendant.

The defendant requested rulings that on these facts a nolle prosequi of the tenor stated had been filed and that the sentence theretofore imposed be revoked. The requests for rulings were denied and the motion to revoke sentence was overruled.

[1] Manifestly no action was taken by the judge indicating revocation of sentence or acceptance of the nolle prosequi. All the proceedings before him respecting the nolle prosequi were in fieri until the expression of his final view in effect that it could not be countenanced. Whatever occurred before that was on the part of the judge in the nature of inquiry, suggestion or remark, involving no conclusion and subject to modification or entire change on further reflection and investigation. Commonwealth v. Rice, 216 Mass. 480, 482, 104 N. E. 347;Waucantuck Mills v. Magee Carpet Co. 225 Mass. 31, 113 N. E. 573.

[2] The power of a prosecuting officer to enter a nolle prosequi is extensive within its sphere. He acts on his official responsibility. He alone is answerable for the exercise of sound discretion. A description of the power of nolle prosequi as absolute doubtless may be found in numerous decisions where the point to be decided did not involve consideration of its limitations. But there are limitations arising from the nature of criminal pleading, the constitutional or inherent rights of a defendant, and the character of prosecution for crime.

[3][4][5] The offense charged cannot be changed by an attempted nolle prosequi. Commonwealth v. Dunster, 145 Mass. 101, 13 N. E. 350;Commonwealth v. Wakelin, 230 Mass. 567, 572, 120 N. E. 209. Power to enter a nolle prosequi is absolute in the prosecuting officer from the return of the indictment up to the beginning of trial, except possibly in instances of scandalous abuse of authority. Attorney General v. Tufts, 239 Mass. 458, 538, 131 N. E. 573,132 N. E. 322,17 A. L. R. 274, and cases there collected; State v. Thompson, 10 N. C. 613. That power is limited, however, after a jury is impaneled. Then the defendant acquires a right to have that tribunal pass upon his guilt by verdict and thus secure a bar to another prosecution for the same offense. That right of the defendant will be protected by the court. A nolle prosequi cannot be entered after the jury has been impaneled without the express or implied consent of the defendant. Commonwealth v. Kimball, 7 Gray, 328;Commonwealth v. Adams, 127 Mass. 15, 19. A nolle prosequi without the consent of the defendant after the trial has commenced and before verdict has the effect of acquittal. Commonwealth v. Hart, 149 Mass. 7, 20 N. E. 310.

[6][7] After verdict the absolute power of the prosecuting officer to enter a nolle prosequi revives. This has been said in substance in numerous cases. Commonwealth v. Tuck, 20 Pick. 356, 366;Commonwealth v. Briggs, 7 Pick. 177;Commonwealth v. Jenks, 1 Gray, 490;Jennings v. Commonwealth, 105 Mass. 586;Commonwealth v. Wallace, 108 Mass. 12;Commonwealth v. Scott, 121 Mass. 33.

Hitherto it has not been necessary to define the limit of time after verdict within which the power to enter nolle prosequi may be exercised. Analysis of the nature of prosecutions for crime demonstrates that it cannot continue after sentence. A nolle prosequi is formal expression of a determination on the part of the attorney general or the district attorney that he will not further prosecute the whole or a separable part of a criminal proceeding. The very nature of the term shows that it cannot spring into existence until a criminal proceeding has been commenced by some process in court, either complaint or indictment. It cannot remain in existence after a criminal prosecution has come to an end. The power of the court over a prosecution for crime is bounded by a final judgment. Sentence is final judgment in a criminal case. That is the end of the case (except under the law as to suspended sentences. Mariano v. Judge of District Court, 243 Mass. 90, 137 N. E. 369), so far as concerns the usual and ordinary control of the court (Commonwealth v. Foster, 122 Mass. 317, 23 Am. Rep. 326; Commonwealth v. Soderquest, 183 Mass. 199, 66 N. E. 801;United States v. Mayer, 235 U. S. 55, 67, 35 Sup. Ct. 16, 59 L. Ed. 129). It is in substance the same rule applicable to judgment in actions at law (Mason v. Pearson, 118 Mass. 61;Karrick v. Wetmore, 210 Mass. 578, 97 N. E. 92), and to final decree in suits in equity (White v. Gove, 183 Mass. 333, 340, 67 N. E. 359;Martell v. Dorey, 235 Mass. 35, 39, 126 N. E. 354). There are ways by which substantial errors may be corrected after sentence in a criminal case. For example, new trial may be granted under G. L. c. 278, § 29, as amended by St. 1922, c. 508, error apparent on the record may be corrected by writ of error (Murphy v. Commonwealth, 172 Mass. 264, 52 N. E. 505, 43 L. R. A. 154, 70 Am. St. Rep 266; Walsh v. Commonwealth, 224 Mass. 39, 112 N. E. 486), and an unexecuted sentence may be revised before the end of the sitting (Commonwealth v. O'Brien, 175 Mass. 37, 55 N. E. 466;Commonwealth v. Lobel, 187 Mass. 288, 72 N. E. 977; Commonwealth v. Weymouth, 2 Allen, 144, 79 Am. Dec. 776). These judicial functions have no relation to the power of the prosecuting officer to enter a nolle prosequi, and do not extend its limits beyond those normally established. The sentence until reversed in some way provided by the law, stands as the final judgment binding upon everybody. In the nature of things the power of the prosecuting officer cannot continue after the power of the court to deal with the case under its general jurisdiction is over.

It is the implication of Commonwealth v. Mead, 10 Allen, 397, 398, that the entry of a nolle prosequi cannot be made after judgment. Although motion for new trial in a capital case pending in this court could be made before sentence, the opinion in Commonwealth v. McElhaney, 111 Mass. 439, proceeds upon the theory that but for an enabling statute no such motion could be entertained after sentence.

[8] The execution of the sentence belongs to the...