Commonwealth v. Di Stasio

• Decision Date: 28 May 1937
• Citation: 8 N.E.2d 923,297 Mass. 347
• Parties: COMMONWEALTH v. DI STASIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 347

8 N.E.2d 923

COMMONWEALTH

v.DI STASIO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 28, 1937.

Anthony Di Stasio was convicted of being an accessory before the fact to a murder, and defendant appeals.

Judgment on the verdict.Appeal from Superior Court, Middlesex County; Dowd, Judge.

W. R. Scharton and B. L. Goldenberg, both of Boston, for appellant.

H. S. Boyd, Sp.Asst. Dist. Atty., of Boston, for the Commonwealth.

RUGG, Chief Justice.

This indictment as amended charges the defendant with being an accessory before the fact to the murder of one Daniel Crowley, which was committed on May 6, 1935, by one Frank Di Stasio, the father of the defendant. The father has been found guilty at an earlier trial. Commonwealth v. Di Stasio (Mass.) 1 N.E.(2d) 189. The present case comes before this court, after a verdict of guilty, by appeal with a summary of the record, a transcript of the evidence, and an assignment of errors, all in accordance with G.L.(Ter.Ed.) c. 278, §§ 33A-33G. Commonwealth v. McDonald, 264 Mass. 324, 162 N.E. 401. No questions need be considered except those included in the thirteen assignments of error. Commonwealth v. Ventura (Mass.) 1 N.E.(2d) 30.

1. The first assignment of error relates to the authority of the presiding judge. At the beginning of the trial the defendant objected to the authority of the presiding judge to conduct the trial. The defendant refused to plead and filed a motion challenging the authority of the presiding judge. The motion was denied, under order of the court a plea of ‘not guilty’ was entered; the objection of the defendant to proceeding with the trial was overruled; and it was ordered that the trial go forward. The defendant excepted and assigned these rulings as error.

The attack of the defendant on the authority of the trial judge is based on the alleged fact that the Governor, James M. Curley, who had purported to appoint him to the Superior Court (Constitution of Massachusetts, pt. 2, c. 2, § 1, art. 9), was without power to do so because he had not complied with the provisions of the Constitution of Massachusetts, pt. 2, c. 6, art. 1, as amended by articles 6 and 7 of the amendments respecting the oath of office to be taken by the Governor. The pertinent words of the Constitution are: ‘And the said oaths or affirmations shall be taken and subscribed by the governor * * * before the president of the senate, in the presence of the two houses of assembly.’ It is not disputed that the oaths of office as Governor were administered to James M. Curley by the Secretary of the Commonwealth in the presence of the members of the House of Representatives only. As matter of common knowledge the Senate was not organized for business and had not elected a president on the first Wednesday in January, 1935. Article 64 of the Amendments to the Constitution. The contention of the defendant is that the provision of the Constitution just quoted is mandatory, that because of his failure to comply with it the Governor never qualified for office and therefore was without power effectually to appoint the trial judge to judicial position.

These matters cannot properly be decided in this proceeding. The primary question relates to the authority of the trial judge. The status of the Governor who appointed him is relevant only so far as it throws light upon that inquiry. The decisions are numerous that such an issue cannot be raised collaterally in a proceeding like the present, if the officer whose authority is assailed holds office de facto and is not a mere intruder or usurper. In Sheehan's Case, 122 Mass. 445, 446,23 Am.Rep. 374, it was urged that a judge had vacated his office by accepting election as a member of the General Court contrary to articel 8 of the Amendments to the Constitution. It was there held that upon ‘well settled principles, it would be inconsistent with the convenience and security of the public, and with a due regard to the rights of one acting in an official capacity under the color of, and a belief in, lawful authority to do so, that the validity of his acts as a justice should be disputed, or the legal effect of his election and qualification as a representative be determined, in this proceeding to which he is not a party.’ This principle is supported by other cases. Fowler v. Bebee, 9 Mass. 231, 6 Am.Dec. 62;Bucknam v. Ruggles, 15 Mass. 180, 8 Am.Dec. 98;Coolidge v. Brigham, 1 Allen, 333;Fitchburg Railroad Co. v. Grand Junction Railroad & Depot Co., 1 Allen, 552;Petersilea v. Stone, 119 Mass. 465, 20 Am.Rep. 335;Commonwealth v. Taber, 123 Mass. 253;Attorney General v. Crocker, 138 Mass. 214, 218;Clark v. Easton, 146 Mass. 43, 14 N.E. 795;Commonwealth v. Wotton, 201 Mass. 81, 84, 87 N.E. 202;Moloney v. Selectmen of Milford, 253 Mass. 400, 406, 407, 149 N.E. 317;Sevigny v. Lizotte, 260 Mass. 296, 157 N.E. 594. It is a widely accepted rule that the authority of a judge who is acting de facto in the performance of the functions of his office cannot be attacked collaterally in any proceeding before him. This is founded upon considerations of policy and necessity and the public welfare. Ball v. United States, 140 U.S. 118, 128, 129, 11 S.Ct. 761, 35 L.Ed. 377;McDowell v. United States, 159 U.S. 596, 601, 16 S.Ct. 111, 40 L.Ed. 271;Matter of Danford, 157 Cal. 425, 431, 108 P. 322;Butler v. Phillips, 38 Colo. 378, 88 P. 480,12 Ann.Cas. 204;State v. Carroll, 38 Conn. 449, 9 Am.Rep. 409; Rex v. Lisle, Andr. 163; Id., 2 Strange, 1090; Margate Pier Co. v. Hannam, 3 Barn. & Ald. 266; Parvin v. Johnson, 110 Kan. 356, 203 P. 721;State v. Roberts, 130 Kan. 754, 288 P. 761;New Orleans v. Mangiarisina, 139 La. 605, 614, 71 So. 886;People v. Townsend, 214 Mich. 267, 183 N.W. 177, 16 A.L.R. 902;Pringle v. State, 108 Miss. 802, 67 So. 455; Byer v. Harris, 77 N.J.Law (48 Vroom) 304, 309, 72 A. 136; Sylvia Lake Co., Inc., v. Northern Ore Co., 242 N.Y. 144, 151 N.E. 158, certiorari denied 273 U.S. 695, 47 S.Ct. 92, 71 L.Ed. 844;State v. Harden, 177 N.C. 580, 584, 98 S.E. 782;Youmans v. Hanna, 35 N.D. 479, 518 et seq., 160 N.W. 705,161 N.W. 797, Ann.Cas.1917E, 263;McGregor v. Balch, 14 Vt. 428, 39 Am.Dec. 231;McCraw v. Williams, 33 Grat.(74 Va.) 510, 513. The rights of third persons ought not to be prejudiced as they would be if the acts of a de facto officer were rendered void by undisclosed circumstances and secret flaws in his title. The basis of his authority is secondary to the main issues on trial. An attack upon the authority of public officer is commonly possible by a direct proceeding to test his title to office or in other actions where the question is raised directly. Commonwealth v. Fowler, 10 Mass. 290;Commonwealth v. Hawkes, 123 Mass. 525;Answer of the Justices, 122 Mass. 600, 603, 604; Short v. Symmes, 150 Mass. 298, 23 N.E. 42,15 Am.St.Rep. 204. This is the basis of most of the cases upon which the defendant relies in this connection. Boyett v. Cowling, 78 Ark. 494, 94 S.W. 682;State v. Lansing, 46 Neb. 514, 64 N.W. 1104,35 L.R.A. 124; Manahan v. Watts, 64 N.J.Law (35 Vroom) 465, 45 A. 813; Murphy v. Freeholders of Hudson, 91 N.J.Law, 40, 102 A. 896. In each of these cases, the question of the officer's title to office was put in immediate issue. Obviously, they are distinguishable from the cases above cited and do not shake their authority.

It is plain from the record as a whole that the trial judge was at least a de facto officer and not a mere interloper. It may be inferred that he had held office for something over a year under color of a valid appointment to an existing vacancy by one generally acknowledged to be the Governor of the Commonwealth. The authority of the trial judge was recognized by the public as having been acquired under the forms of law and as being apparently valid. Bucknam v. Ruggles, 15 Mass. 180, 8 Am.Dec. 98;Petersilea v. Stone, 119 Mass. 465, 20 Am.Rep. 335;Attorney General v. Crocker, 138 Mass. 214, 218;Clark v. Easton, 146 Mass. 43, 14 N.E. 795;Commonwealth v. Wotton, 201 Mass. 81, 85, 87 N.E. 202;McDowell v. United States, 159 U.S. 596, 601, 16 S.Ct. 111, 40 L.Ed. 271;State v. Carroll, 38 Conn. 449, 9 Am.Rep. 409. It follows that the cases relied upon by the defendant concerning usurped authority or acts done in violation of an express constitutional or statutory prohibition are not in point. United States v. Alexander (D.C.) 46 F. 728;Keeler v. Stead, 56 Conn. 501, 16 A. 552,7 Am.St.Rep. 320;Hildreth's Heirs v. McIntire's Devisee, 1 J.J.Marsh.(24 Ky.) 206, 19 Am.Dec. 61;Shelby v. Alcorn, 36 Miss. 273, 72 Am.Dec. 169;McCraw v. Williams, 33 Grat.(74 Va.) 510. The authority of the trial judge was at least de facto and cannot here be assailed. It is unnecessary to discuss the question of the authority of the Governor by whom he was appointed. This conclusion is supported directly by Sheehan's Case, 122 Mass. 445, 23 Am.Rep. 374, and by the great weight of decisions in other jurisdictions.

2. The defendant filed a plea in bar in the nature of a plea of autrefois acquit. It was therein recited that the defendant had been tried, together with his father, upon an indictment charging him as principal in this murder, and that at the close of the evidence a verdict of not guilty had been directed in his favor. It was further stated in the plea that, since in that trial there was uncontradicted evidence that he was present at the time the murder was being committed, the only possible reason that the presiding judge directed a verdict of not guilty was because this defendant was not there by arrangement or with any criminal intent; and that therefore, the direction of a verdict in his favor constituted an adjudication that he had been free of such intent and without any arrangement with the principal defendant, Frank Di Stasio. On presenting the plea, the attorney for the defendant asked ‘whether or not the Government * * * has the right, under the statute, to join issue or demur.’ The judge ruled that no...