Commonwealth v. Desatnick

• Decision Date: 29 February 1928
• Citation: 160 N.E. 271,262 Mass. 408
• Parties: COMMONWEALTH v. DESATNICK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 408

160 N.E. 271

COMMONWEALTH

v.DESATNICK.

Supreme Judicial Court of Massachusetts, Worcester.

Feb. 29, 1928.

Exceptions from Superior Court, Westchester County; C. H. Donahue, Judge.

Nathan Desatnick was convicted of procuring murder in the first degree as an accessory before the fact, and he excepts. Exceptions overruled. Judgment on the verdict.

C. B. Rugg, Dist. Atty., and E. G. Norman, Asst. Dist. Atty., both of Worcester, and H. W. Brown, Asst. Dist. Atty, of Whitinsville, for the Commonwealth.

G. R. Stobbs and H. H. Hartwell, both of Worcester, for defendant.

CARROLL, J.

The defendant was found guilty of ‘procuring murder in the first degree as an accessory before the fact,’ under an indictment charging that ‘John Doe, whose other and true name and a more particular description of whom is to said jurors unknown * * * [on June 5, 1927] did assault and beat Stella Goldberg otherwise known as Stella Desatnick otherwise known as Marion Desatnick, by drowning her in Lake Quinsigamond. * * * And that Nathan Desatnick, before said murder was committed did incite, procure, aid and counsel, hire or command said John Doe, the said murder to do and commit.’ With this indictment there was tried another indictment against the defendant as principal in the same murder. On this indictment there was a verdict of not guilty.

The single exception of the defendant is to the refusal of the trial judge on his motion to instruct the jury to return a verdict of not guilty. The assignment of errors alleges as the basis of the exception the absence of evidence that the defendant incited, procured, aided or counseled, hired or commanded Harry Balkan, alias John Doe, to commit the said murder; that the case of the commonwealth rested on the theory that the defendant himself committed the murder and there was no such person as Balkan to whom the defendant could be an accessory.

The dead body of Stella Desatnick was found about six o'clock on the evening of June 6, 1927, in Lake Quinsigamond on the Shrewsbury side, about one-half mile from the bridge between Worcester and Shrewsbury. Stella Desatnick was born January 30, 1927. The defendant was her father, her mother was Anna Goldberg. The defendant and Anna Goldberg were married on May 2, 1927. There was evidence from a social worker who talked with the defendant a short time after the birth of the child that he said ‘he thought it would be the best thing to give the baby away, so Anna could return home’; that ‘his mother advised him to give the baby away and he could continue to keep company with Anna.’ On February 14, 1927, the defendant and Anna Goldberg brought the baby to the home of Mrs. Jackson at Arlington Heights, where she was to be cared for. She remained with Mrs. Jackson until June 5, the defendant paying Mrs. Jackson from time to time for the care of the child.

The defendant testified that about ten days before June 5 he met Balkan and talked with him about taking the child to New York, and later arranged with Balkan to meet him at Scollay Square, Boston, after nine o'clock on the night of June 5; that on June 5, he left his home between ten and eleven o'clock in the morning, telling his wife he would be away on business, and went to the rooms of a social club at the West End, Boston, where he remained until he went to a moving picture theatre; that after leaving the theatre he returned to the vicinity of the social club, where his automobile was standing, and drove to Scollay Square; that there he met Balkan about a ‘quarter past nine or half-past 9,’ and drove to the home of Mrs. Jackson; that on the journey he gave Balkan $25 to pay his fare to New York; that Balkan said to him that as soon as the baby was placed in a home in New York he would let the defendant know ‘how much the board * * * [would] be for the baby.’ In his statement to the police officers the defendant said he let Balkan ‘off just before they got to the house, around the corner,’ that his reason for this was ‘Mrs. Jackson might think they were going to kill the baby if she saw two of them’; and he testified that he asked Balkan to wait for him because ‘If I had gone up with him to Mrs. Jackson's house I probably wouldn't have got the baby. * * * It wouldn't seem very good to her that I had a strange fellow with me and come for the baby.’

The defendant said to Mrs. Jackson that he intended to go to New York with his wife and the baby on the midnight train; that he was going to start housekeeping with a cousin of his and that they desired to take the baby with them. The baby was placed in a sleeping bag with her hands inside the bag, and before leaving the Jackson home she was given castor oil and milk. While the baby was being dressed, the defendant excused himself, saying he had to go to Sylvia street, but would ‘be back in about ten minutes.’ He admitted he did not go to Sylvia street. He returned to the Jackson home with an automobile, leaving Balkan and telling him he ‘would be right back, and * * * [Balkan] stood there waiting for * * * [him].’

There was evidence that the night was cold, there had been a thunderstorm, and there was a strong wind when the defendant took the baby from the Jackson house about eleven o'clock; that he placed her on the floor between the rear and front seats of the open automobile, and Mrs. Jackson protested at this treatment and offered to go with him to the station; that finally the child was placed in the front seat at the defendant's side. The defendant testified that Balkan was ‘picked * * * up at the foot of the hill’; that at the East Cambridge courthouse, about fifteen minutes after leaving the Jackson house, Balkan asked him to stop, saying, ‘It is kind of early to go to the train and sit around at the South Station; I will go in my friend's house and hang around until train time’; that ‘he was going to take the midnight train.’ The defendant admitted he did not know where the child was to be placed in New York and did not know at what address in New York Balkan could be found. He knew that Balkan had been arrested on at least two occasions. He had not seen or heard from Balkan since June 5. The defendant testified he had not written to find out where the child was.

On August 5, 1927, after the child had been identified by Mrs. Jackson, a police officer went to the home of defendant's father. The defendant was told that the officers ‘were checking up on a baby that had been boarding with a Mrs. Jackson, and had information that he was the father of that baby.’ He said he was. He was asked where the baby was. He replied, ‘In New York state.’ He was asked where in New York, and replied, ‘I have got the address here in my pocket.’ He made a search through his clothes and finally said, ‘I will tell you the truth, * * * I gave the baby away * * * [to] a fellow named Balkan.’ He was asked if he had heard from Balkan. He said, ‘No,’ and, when asked where the baby was, said ‘It ought to be in New York state; as far as I know, it is.’

When the body of Stella was found on June 6, she was fully clothed and was in the sleeping bag, dressed in the same manner as she was on leaving the Jackson home the night before. The autopsy showed that the child died from drowning, and from the appearance of the milk and castor oil in the stomach, death occurred within three or four hours after the food and oil had been taken into the stomach.

[2][3] On this record there was no error of law in refusing the defendant's motion for a directed verdict. There was evidence for the jury that Stella Desatnick was murdered by drowning on the night of June 5 or early in the morning of June 6. It was impossible for a...