Commonwealth v. Di Stasio

• Citation: 294 Mass. 273,1 N.E.2d 189
• Parties: COMMONWEALTH v. DI STASIO.
• Decision Date: 07 April 1936
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 273

1 N.E.2d 189

COMMONWEALTH v. DI STASIO.

Supreme Judicial Court of Massachusetts, Middlesex.

April 7, 1936

Frank Di Stasio was found guilty of murder in the first degree, and he appeals.

Judgment on the verdict of guilty.

Appeal from Superior Court, Middlesex County Brown, Judge.

E. M Shanley and T. B. Shea, both of Boston, for appellant.

D. J. Doherty, Sp. Asst. Dist. Atty., of Woburn, for the Commonwealth.

LUMMUS, Justice.

The evidence in this case, including a confession, warranted a finding of the following facts. The defendant's wife died on March 30, 1935, after a lingering illness, leaving the defendant and their only child, Anthony, a married man of twenty-three years. The defendant was engaged in a retail grocery business which was practically managed by one Ethel Reilly, to whom, about a month after the death of his wife, he became engaged to be married. The grocery business was not successful, and the store was closed on May 4, 1935. On March 6, 1935, the defendant, who already had considerable life insurance as well as accident insurance, made formal application for a life insurance policy on his life for $5,000, with Anthony as beneficiary. The policy was issued on March 28, 1935. On March 20, 1935, the defendant negotiated with another company for a policy of $5,000 against accident to himself, with Anthony as beneficiary, the formal application for which was made on April 13, 1935. This policy became in force by delivery and payment by check for the premium on May 1, 1935.

In his confession, the defendant stated that when he procured this insurance he intended to ‘ do away with someone’ and ‘ collect the insurance,’ and that he ‘ got the insurance for that purpose.’ On April 5, 1935, the defendant bought for $1,508 an automobile of a 1934 model, which was paid for with $175 in cash, two old automobiles, and a note for $1,141.25, payable in sixty days. On April 15, 1935, the defendant bought an automobile of a less expensive make and of a 1929 model, for $100, paying $50 in cash and giving a note for 50. Both automobiles were registered in the name of the defendant, the former on April 8, 1935, and the latter on April 15, 1935.

On the evening of May 6, 1935, the defendant, driving his less expensive automobile, went into Boston, and at the Common invited a man, who had been drinking intoxicating liquor and whom he did not know, to take a ride. The unknown man got in, and they drove to the neighborhood of Hudson. There the defendant struck the unknown man on the head with an iron bar, and either left him in the automobile or put him into the automobile. There, while the unknown man was still alive though probably unconscious, the defendant poured gasoline over him from a can which the defendant had carried on the journey, and set him afire. Death of course resulted. The face, the hands, and the feet, were almost destroyed by fire, and the remainder of the body was much burned. The flames spread to the automobile. In the burned automobile was found a ring belonging to the defendant and inscribed with his initials, but he denied having left it there intentionally. After setting the unknown man afire, the defendant went on foot down the road and found his more expensive automobile, in which Anthony had followed the defendant from Boston. He and Anthony drove back to Boston, where the defendant took a room in a lodging house under the name of ‘ Edward Morand, 64 Broad Street, New York.’

The defendant and Anthony were indicted together on May 8, 1935, for the murder on May 6, 1935, of ‘ one John Doe, whose true name and a more particular description of whom is to said Jurors unknown.’ Anthony had been questioned by the police on the day before. A warrant issued for the defendant on May 8, 1935, and he was taken into custody in Boston at about one o'clock in the afternoon. Afterwards, at about three o'clock in the afternoon of that day, the defendant was questioned in the office of the district attorney at Cambridge, and made a confession of the crime. On May 9, 1935, the defendant was arraigned at Cambridge, and entered a plea of not guilty.

Later the district attorney came into possession of ample evidence, which need not be recited, that the man, unknown at the time of the indictment, who was killed, was one Daniel Crowley, who had lived in a lodging house on Green Street in Boston, had once worked for the New York, New Haven & Hartford Railroad, and had last been seen on May 6, 1935. On October 17, 1935, the district attorney, on behalf of the Commonwealth, moved to amend the indictment by striking out the reference to the fictitious John Doe and by inserting, as the name of the person murdered, ‘ one Daniel Crowley.’ This motion to amend was allowed, subject to the exception of the defendant, on October 28, 1935, just before the trial began. The indictment as amended was served upon the defendant and Anthony (G.L.[Ter.Ed.] c. 277, § 65), and they were arraigned upon it. Each entered a plea of not guilty.

The defendant and Anthony were tried together for the murder of Daniel Crowley. At the conclusion of the evidence, a directed verdict of not guilty was returned in favor of Anthony. The defendant testified, but he neither admitted nor denied the killing. As is said in the defendant's brief, ‘ The principal defense of the defendant, Frank Di Stasio, was that he was insane and out of his mind at the time through drink and never had any knowledge of the acts with which he was charged.’ The case against the defendant was submitted to the jury, and a verdict of guilty of murder in the first degree was returned. The case comes here by appeal, with a summary of the record, a transcript of the evidence, and an assignment of errors, under G.L.(Ter.Ed.) c. 278, §§ 33A-33G. Commonwealth v. McDonald, 264 Mass. 324, 162 N.E. 401.

1. The amendment of the indictment is assigned as error. By G.L. (Ter.Ed.) c. 277, § 35A, ‘ Upon motion of the district attorney or prosecuting officer, the court may order the complaint or indictment amended in relation to allegations or particulars as to which the defendant would not be prejudiced in his defence.’ In Commonwealth v. Cooper, 264 Mass. 378, 162 N.E. 733, it was held that an indictment which, because of the omission of the words ‘ willfully and maliciously,’ set out no offense, could not be corrected by the insertion of those words. In Commonwealth v. Snow, 269 Mass. 598, 603 et seq., 169 N.E. 542, 68 A.L.R. 920, it was held that an indictment for threatening injury to a person with intent to extort money could not be amended by naming a different person as the one to whom injury was threatened. It was said (269 Mass. 598, at page 606, 169 N.E. 542, 545, 68 A.L.R. 920) that the statute ‘ must be interpreted as authorizing amendments to indictments only as to matters of form and not as to matters of substance,’ and (269 Mass. 598, at pages 609, 610, 169 N.E. 542, 546, 68 A.L.R. 920) that ‘ One test to determine whether the change made was material is whether judgment of conviction or acquittal on the indictment as drawn would be a bar to a new indictment drawn in the form in which it stood after the amendment.’ See, also, Commonwealth v. McKnight, 283 Mass. 35, 39, 186 N.E. 42.

Although the indictment in the present case did not as returned by the grand jury name or describe the man who had been murdered, except by a fictitious name (see Commonwealth v. Crotty, 10 Allen, 403, 87 Am.Dec. 669; Commonwealth v. Berley, 254 Mass. 556, 558, 150 N.E. 869), in theory of law it required the defendant to answer for the murder of a particular man and no other. Commonwealth v. Blood, 4 Gray, 31; Commonwealth v. Burke, 14 Gray, 81; Commonwealth v. Carroll, 15 Gray, 412; Commonwealth v. Dean, 109 Mass. 349, 352; Commonwealth v. Fields, 119 Mass. 105; Commonwealth v. Coughlin, 182 Mass. 558, 564, 66 N.E. 207; Commonwealth v. Coyne, 207 Mass. 21, 92 N.E. 1028,20 Ann.Cas. 1069. See, also, Commonwealth v. Gedzium, 259 Mass. 453, 460, 461, 156 N.E. 890. It is not denied that that man was the man found dead in the automobile. If that had been questioned, evidence that the killing of that man was the subject of the evidence presented to the grand jury would have been admissible to identify the offense charged. Commonwealth v. Hill, 11 Cush. 137; United States ex rel. Mouquin v. Hecht (C.C.A.) 22 F.(2d) 264; People v. Bogdanoff, 254 N.Y. 16, 171 N.E. 890, 69 A.L.R. 1378. See, also, Attorney General v. Pelletier, 240 Mass. 264, 308, 134 N.E. 407; Rocco v. State, 37 Miss. 357, 368, 369. The amendment merely supplied a description of the murdered man by his name, the omission of which would have vitiated the indictment had the name been known to the grand jury when the indictment was returned. Commonwealth v. Stoddard, 9 Allen, 280; Commonwealth v. Hill, 11 Cush. 137, 141; Commonwealth v. Merrick, 255 Mass. 510, 513, 152 N.E. 377. See, also, Commonwealth v. Sheedy, 159 Mass. 55, 34 N.E. 84; Commonwealth v. Hebert, 264 Mass. 571, 575, 163 N.E. 189. The amendment did not change the substance of the crime charged, but restricted the Commonwealth in its proof, to the advantage of the defendant, in much the same way as might have been done by specifications. Commonwealth v. Farrell, 105 Mass. 189; Commonwealth v. Dill, 160 Mass. 536, 36 N.E. 472; Commonwealth v. Haywood, 247 Mass. 16, 19, 141 N.E. 571; Commonwealth v. Gedzium, 259 Mass. 453, 457, 458, 156 N.E. 890; Commonwealth v. Snyder, 282 Mass. 401, 412, 185 N.E. 376. The allowance of the amendment was not error. State v. Grossman, 94 N.J.Law, 301, 110 A. 711; State v. Tolla, 72 N.J.Law, 515, 62 A. 675,3 L.R.A. (N.S.) 523; State v. Haapanen, 129 Me. 28, 149 A. 389.

The general validity of an indictment for murder in the...