Commonwealth v. Demboskl

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtPIERCE
Citation186 N.E. 589,283 Mass. 315
Decision Date27 June 1933
PartiesCOMMONWEALTH v. DEMBOSKL et al.

283 Mass. 315
186 N.E. 589

COMMONWEALTH
v.
DEMBOSKL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 27, 1933.


Appeal from Superior Criminal Court, Suffolk County; Greenhalge, Judge.

Anthony Demboski and another were convicted of assault with intent to kill, and they appeal on assignment of errors.

Judgment affirmed.


[283 Mass. 317]J. P. Walsh and H. Aronofsky, both of Boston, for appellants.

F. T. Doyle and W. J. Sullivan, Asst. Dist. Attys., both of Boston, for the Commonwealth.


PIERCE, Justice.

This case comes before this court on appeal on assignment of errors. The defendants, Anthony Demboski and Thomas Dineen, with Stephen Wallace (alias Steve Gustin) and Francis P. Sullivan (alias Francis Sullivan) were indicted for an assault with intent to murder Daniel J. McDonald on January 15, 1933. Demboski and Dineen were put on trial, and on March 18, 1933, both defendants were found by the jury ‘Guilty of assault with intent to kill.’ On the same day the defendant Dineen was sentenced to the State prison for a term of not less than nine years nor more than ten years, and the defendant Demboski was sentenced to the State prison for a term of not less than eight years nor more than nine years. During the trial of the case the defendants took exception to the admission and exclusion of evidence by the presiding judge. On March 21, 1933, the defendants, by their attorney, filed a motion to revoke and vacate the sentences and also a motion for a new trial. On March 28, 1933, the defendants filed a waiver of a motion for a new trial. On April 4, 1933, the motion to revoke and vacate the sentences[283 Mass. 318]was denied and the defendants duly filed a claim of exception to such denial.

The salient facts which the evidence for the

[186 N.E. 590]

Commonwealth warranted a jury in finding are in substance, as follows: On Saturday, January 14, 1933, Daniel J. McDonald, a member of the Boston police department, was investigating a hold-up that had occurred in the Economy Company warehouse on D Street, South Boston, on December 25, 1932. On January 14, 1933, he received a telephone call at police headquarters and as a result of that call went in civilian clothes to the premises numbered 2 Vinton Street, South Boston. He arrived there at about 6:35 P. M. January 15, 1933; he entered a room on the second floor and there met Stephen Wallace (alias Steve Gustin, one of the persons named in the indictment in the case at bar), and also the defendant Demboski. He had some talk with them and took some whiskey which Demboski gave him in a glass, drank it, and then went into the front room and sat down in a chair with his head ‘pitched down,’ ‘bent down.’ As he sat there Dineen came into the room, walked over to him and pushed up his head, looked at him, and hollered ‘Steve.’ Then Gustin and Dineen left the room and went into the back room where McDonald went when he first entered the place.

There was also present one Thomas Curran who testified as a government witness, in substance, as follows: After some talk in the back room between Dineen, Gustin and Demboski as to whether McDonald was or was not a police officer, who ‘pinched us a couple of years ago and gave us an awful beating at the station house,’ Gustin sent Curran from the kitchen into the front room to ask McDonald if he wanted a drink. Thereupon Curran went to the front room and asked McDonald if he wanted another drink, and McDonald answered, ‘Yes.’ Curran went back to the kitchen and told Gustin that McDonald ‘wanted a drink.’ Gustin told Curran to get ‘the glass and bottle that was * * * on the table’ in the front room. Curran went in, picked up the glass and bottle and took them into the kitchen. As he went to pass the glass and bottle to [283 Mass. 319]Gustin, Dineen took them and Gustin ‘says ‘Give me that.” As Dineen was going to give the bottle to Gustin, Dineen said, ‘I wish I had some arsenic’; Gustin then walked over to the table with the bottle and said, ‘I've got something that is just as good,’ put his hand in his pocket and took out a small container and said in the presence of Demboski and Dineen, ‘This will fix him good.’ He then told Curran to go into the front room and keep McDonald company. Curran did as he was told and in ‘three or four minutes' Gustin, Dineen and Demboski came into the front room. Dineen held the glass. He walked over to McDonald and said, ‘Here is your drink.’ McDonald said, ‘Thanks,’ took the glass, ‘drank part of the drink and laid it on the table.’ Then he picked up the glass and drank the rest of it. He became unconscious about four or five minutes after he took the second drink, While he was in this condition Demboski put some matches into McDonald's shoe, lit them, and let them burn right down to the leather. McDonald gave no sign except ‘to uncross his feet and put them on the floor.’ Thereupon Dineen, Gustin, Demboski and Francis Sullivan (one of the persons named in the indictment) seized McDonald and dragged him to the head of the stairway outside the front room. They then lifted him, pointed him head first, face downward, and threw him down the flight of stairs leading to the first floor. He landed five steps from the bottom. Dineen and Gustin followed down the steps and pushed and kicked McDonald the rest of the way to the first floor. They then had a consultation as to what should be done with McDonald, and then proceeded downstairs, where they found McDonald at the end of the hallway; they took him...

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33 practice notes
  • Com. v. Henson
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 18, 1985
    ...that assault with intent to kill is a lesser included crime within the crime of assault with intent to murder. Commonwealth v. Demboski, 283 Mass. 315, 322, 186 N.E. 589 (1933). See Commonwealth v. Hebert, 373 Mass. 535, 538, 368 N.E.2d 1204 (1977). The difference is that in the lesser crim......
  • Com. v. Campbell
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 27, 1967
    ...not justified in law, but without malice aforethought which is necessary to constitute [352 Mass. 397] murder. Commonwealth v. Demboski, 283 Mass. 315, 322, 186 N.E. 589, and cases cited. We need not consider voluntary manslaughter since in the instant case there was no evidence that Campbe......
  • Com. v. Judge
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 1, 1995
    ...in the first degree and murder in the second degree based on a difference in the element of malice"). See Commonwealth v. Demboski, 283 Mass. 315, 322, 186 N.E. 589 (1933) ("manslaughter imports the taking of human life by an act not justified in law, but without malice aforethought which i......
  • Commonwealth v. Pugh, SJC–10895.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 15, 2012
    ...See Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. 826, 832, 926 N.E.2d 206 (2010), citing Commonwealth v. Demboski, 283 Mass. 315, 322, 186 N.E. 589 (1933) (“when we refer to the intent required to support a conviction of involuntary manslaughter, we refer to the intent to perform......
  • Request a trial to view additional results
33 cases
  • Com. v. Henson
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 18, 1985
    ...that assault with intent to kill is a lesser included crime within the crime of assault with intent to murder. Commonwealth v. Demboski, 283 Mass. 315, 322, 186 N.E. 589 (1933). See Commonwealth v. Hebert, 373 Mass. 535, 538, 368 N.E.2d 1204 (1977). The difference is that in the lesser crim......
  • Com. v. Campbell
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 27, 1967
    ...not justified in law, but without malice aforethought which is necessary to constitute [352 Mass. 397] murder. Commonwealth v. Demboski, 283 Mass. 315, 322, 186 N.E. 589, and cases cited. We need not consider voluntary manslaughter since in the instant case there was no evidence that Campbe......
  • Com. v. Judge
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 1, 1995
    ...in the first degree and murder in the second degree based on a difference in the element of malice"). See Commonwealth v. Demboski, 283 Mass. 315, 322, 186 N.E. 589 (1933) ("manslaughter imports the taking of human life by an act not justified in law, but without malice aforethought which i......
  • Commonwealth v. Pugh, SJC–10895.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 15, 2012
    ...See Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. 826, 832, 926 N.E.2d 206 (2010), citing Commonwealth v. Demboski, 283 Mass. 315, 322, 186 N.E. 589 (1933) (“when we refer to the intent required to support a conviction of involuntary manslaughter, we refer to the intent to perform......
  • Request a trial to view additional results

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