Commonwealth v. Di Stasio

• Decision Date: 27 May 1937
• Parties: COMMONWEALTH v. ANTHONY DISTASIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 347

8 N.E.2d 923

COMMONWEALTH v. ANTHONY DISTASIO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 27, 1937

October 9, 1936.

Present: RUGG, C.

J., CROSBY, PIERCE FIELD, & LUMMUS, JJ.

Public Officer Judge. Practice, Criminal, Double jeopardy, Exceptions Question of law or fact, Jury trial, Qualification of jurors Charge to jury, Requests, rulings and instructions. Pleading, Criminal, Plea in bar. Constitutional Law, Double jeopardy. Homicide. Accessory. Res Judicata. Evidence, Of consciousness of guilt, Of handwriting, Presumptions and burden of proof. Jury and Jurors. Grand Jury.

The authority of a judge acting at least de facto, and not as a mere intruder or usurper, cannot be attacked collaterally in a proceeding before him.

A defendant in an indictment was not shown to have been harmed by a ruling that his plea of prior jeopardy raised an issue without further pleading by the Commonwealth where the defendant without exception to the ruling proceeded to a hearing of the plea on its merits.

It was stated that the sufficiency of the defendant's plea of prior jeopardy to an indictment may be determined without demurrer or replication by the

Commonwealth.

The defendant in an indictment was not entitled to a trial by jury of issues raised by his plea of prior jeopardy based on the record of his former trial, a question of law only being involved.

An indictment as accessory before the fact to a murder was not barred by a previous acquittal on an indictment as a principal in the same murder.

A directed verdict of not guilty on an indictment as principal in a murder on the specified ground that the defendant was not proved to have participated in the murder, was not an adjudication that he was not guilty of being an accessory before the fact to the same murder.

A verdict of guilty as accessory before the fact to murder was warranted by evidence that the defendant's father planned the murder as part of a scheme to defraud insurance companies, and that the defendant had knowledge of the scheme, participated in some of the preliminary steps thereof, accompanied his father to the scene of the murder and waited nearby while it was committed, though he did not participate in its actual commission, then drove his father away and helped conceal him, and later made false statements concerning his conduct.

That one suspected of crime made false statements when questioned as to his conduct at the time when the crime was committed was evidence of his consciousness of guilt.

Though under G. L. (Ter. Ed.) c. 274, Section 4, a son could not be convicted as an accessory after the fact to a murder committed by his father, evidence of aid given by the son to his father after the murder was admissible to supplement other evidence of his guilt at the trial of an indictment as accessory before the fact.

An issue as to which of two persons had signed a lodging house register rightly was submitted to the jury on proof of standards of the handwriting of both. The Commonwealth was not bound by the testimony of a witness produced by the

District attorney.

One who had served as a grand juror was not disqualified by G. L. (Ter. Ed.) c. 234, Section 2, from voluntary service as a traverse juror within three years.

One who had been sworn for service as a grand juror but had been excused and had not participated in finding a certain indictment was not a "member" of the grand jury which found it within G. L. (Ter. Ed.) c. 277, Section 14, nor disqualified to sit as a traverse juror at the trial of the indictment.

At the trial of an indictment as accessory before the fact to murder, where the judge fully and accurately charged the jury as to that crime, there was no error in a statement by him to the jury that they need not concern themselves with the defendant's guilt as an accessory after the fact; nor error in the refusal of requested rulings whose subject matter was adequately covered by the judge in his own words.

Knowledge of and participation in a plan to commit murder could be found by inference from other facts in evidence.

At the trial of an indictment as accessory before the fact to murder, an instruction to the jury that the evidence "warranted" a finding that the principal had committed murder in the first degree did not violate G. L.

(Ter. Ed.) c. 265, Section 1.

INDICTMENT, found and returned to the Superior Court on May 10, 1935. The indictment was tried before Dowd, J. The defendant was found guilty and filed an appeal with assignments of error.

W. R. Scharton, (B.

L. Goldenberg with him,) for the defendant.

H. S. Boyd, Special Assistant District Attorney, for the Commonwealth.

RUGG, C.J. 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 DiStasio, the father of the defendant. The father has been found guilty at an earlier trial. Commonwealth v Distasio, 294 Mass. 273 . 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, Sections 33A-33G. Commonwealth v. McDonald, 264 Mass. 324. No questions need be considered except those included in the thirteen assignments of error. Commonwealth v. Ventura, 294 Mass. 113 , 125.

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, c. 2, art. 9), was without power to do so because he had not complied with the provisions of the Constitution of Massachusetts, c. 6, art. 1, as amended by arts. 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. Art. 64 of the Amendments to the Constitution. The contention of the defendant is that the provision of the Constitution just quoted is mandatory, and 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, it was urged that a judge had vacated his office by accepting election as a member of the General Court contrary to art. 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. Bucknam v. Ruggles, 15 Mass. 180 . Coolidge v. Brigham, 1 Allen, 333. Fitchburg Railroad v. Grand Junction Railroad & Depot Co. 1 Allen, 552. Petersilea v. Stone, 119 Mass. 465 . Commonwealth v. Taber, 123 Mass. 253 . Attorney General v. Crocker, 138 Mass. 214 , 218. Clark v. Easton, 146 Mass. 43. Commonwealth v. Wotton, 201 Mass. 81 , 84. Moloney v. Selectmen of Milford, 253 Mass. 400 , 406, 407. Sevigny v. Lizotte, 260 Mass. 296 . 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. McDowell v. United States, 159 U.S. 596, 601. Matter of Danford, 157 Cal. 425, 431. Butler v. Phillips, 38 Colo. 378. State v. Carroll, 38 Conn. 449. Rex v. Lisle, Andr. 163; S. C. 2 Stra. 1090. Margate Pier Co. v. Hannam, 3 B. & Ald. 266. Parvin v. Johnson, 110 Kans. 356. State v. Roberts, 130 Kans. 754. New Orleans v. Mangiarisina, 139 La. 605, 614. People v. Townsend, 214 Mich. 267. Pringle v. State, 108 Miss. 802. Byer v. Harris, 48 Vroom, 304, 309. Sylvia Lake Co. Inc. v. Northern Ore Co. ...