Commonwealth v. Festo

• Decision Date: 26 February 1925
• Citation: 251 Mass. 275,146 N.E. 700
• Parties: COMMONWEALTH v. FESTO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 275

146 N.E. 700

COMMONWEALTH

v.FESTO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 26, 1925.

Exceptions from Superior Criminal Court, Suffolk County; G. A. Sanderson, Judge.

Frank Festo was convicted of murder in the second degree, and he excepts. Exceptions overruled.D. T. O'Connell, of Boston, for the Commonwealth.

W. R. Scharton, of Boston, for defendant.

RUGG, C. J.

This is an indictment charging the defendant with the crime of murder. The jury returned a verdict of guilty in the second degree.

[1][2][3] Before the jury was impaneled, the attorney for the defendant moved for a continuance on the ground that he was actually engaged in the trial of another criminal case of much less magnitude before another session of the superior court and had given due notice thereof to the district attorney. Other conflicting engagements of counsel afford no right to the continuance of any particular case. It was provided by R. L. c. 173, § 81, that an attorney at law actually engaged in the trial of certain causes should not be required to proceed to the trial of other causes except by special order of court. That statute was repealed by St. 1912, c. 542. The matter now is wholly in the control of the court. It is manifest that this is the only way in which the trial of causes can proceed in an orderly and expeditious way under present conditions. There is no dearth of lawyers. There is congestion in the dockets of the superior court. No attorney can accept personal retainers for a larger number of cases than he can try as and when they are reached and expect courts to continue any case for his convenience or that of his clients. Unreasonable delay in the administration of justice can be avoided only by leaving continuances of cases because of conflicting engagements of counsel solely to the sound discretion of the court. The facts in the case at bar, which need not be further narrated, show that the judge was clearly right in denying the motion. Motions for continuance commonly are for the presiding judge alone. Noble v. Mead-Morrison Co., 237 Mass. 5, 16, 129 N. E. 669. Under a much narrower principle than that here stated, upon the facts as the judge may have found them, there was no error in denying the motion. The attorney in question tried the case at bar.

[4] There was evidence tending directly or indirectly to show that the defendant entered an ice cream store in Boston on an August evening and shot and killed one Regione, as he was seated at a table with his brother-in-law, with two cousins who were sisters, and with another man, and then ran into the street, ‘covering the door with a gun,’ and soon after was arrested. The brother-in-law and cousins were called as witnesses by the district attorney. They testified that they did not know the other man sitting at the table. His identity was not established at the trial. Others, who were in the store and were called as witnesses, testified that they were unable to identify the person who did the shooting. One or more of the three relatives of Regione called as witnesses testified in whole or in part in substance that they could not identify the defendant as having been in the store on the night in question, and that, just before the fatal shots were fired, Regione uttered some insulting or threatening remarks to his assailant, rose from his chair, and made motions as if to draw a weapon, or in fact pulled out a revolver. Evidence was then rightly admitted to the effect that soon after the homicide these witnesses made statements quite different from their testimony given in court. According to some of these statements the defendant was identified as the person who did the shooting, and Regione was unconscious of his presence and made no threat or remark to him and did not reach for any weapon. Evidence of inconsistent statements made at other times by these witnesses concerning the subject of their testimony was clearly admissible under G. L. c. 233, § 23. It was proper for the district attorney to introduce such evidence respecting witnesses called by him in a criminal prosecution. Commonwealth v. Moinehan, 140 Mass. 463, 5 N. E. 259. The circumstance that he expected that the witnesses might testify as they did afforded no ground for objection to the showing of previous inconsistent statements. Brooks v. Weeks, 121 Mass. 433. It well may have been thought necessary to call these persons as witnesses as a part of the case for the Commonwealth. The were all present at the homicide. It is not necessary to narrate in detail either the testimony given by each witness or the inconsistent statements made by each on previous occasions admitted in evidence. All the impeaching testimony related to matters material to the issues being tried. Ryerson v. Abington, 102 Mass. 526, 530, 531. A careful examination of the entire record in this particular demonstrates that no error was committed.

[5][6] Full and accurate instructions were given as to the scope and effect to be accorded to such impeaching testimony and the narrow limits to which it must be confined. The jury were plainly told that such evidence, however much it might discredit the witnesses, did not have the effect of independent evidence and had no probative force with respect to the truth of the inconsistent statements made out of court. The rights of the defendant were protected. It must be presumed that the instructions were followed. Manning v. Carberry, 172 Mass. 432, 52 N. E. 521;Donaldson v. New York, New Haven & Hartford Railroad, 188 Mass. 484, 486, 74 N. E. 915;Commonwealth v. Turner, 224 Mass. 229, 237, 112 N. E. 864;Bloustein v. Shindler, 235 Mass. 440, 126 N. E. 774;Southern Railway v. Gray, 241 U. S. 333, 337, 36 S. Ct. 558, 60 L. Ed. 1030.

[7] The circumstance that the impeaching testimony disclosed that identification of the defendant was made at the station house soon after his arrest by one of these witnesses, and that the defendant remained silent, discloses no error. The jury were at the time told by the judge that the testimony did not affect the defendant, that he was not called upon to say anything, and that no inference was to be drawn against him because he said nothing. The rights of the defendant thus were protected. Commonwealth v. Spiropoulos, 208 Mass. 71, 74, 94 N. E. 451.

The medical examiner testified to facts revealed at an autopsy performed by him on the body of Regione. It being the contention of the Commonwealth that the shots were fired at Regione while he was seated at the table, the medical examiner was permitted to testify that the course of the bullets through the body of the victim was such that he was sitting and could not have been standing on a level with the person who fired the shots, and that the latter must have been at some elevation above the person shot. He also was permitted to testify that the deceased could not have held a gun in his hand after the bullets entered his body. There was no error in admitting this testimony. It related to matters outside the range of common experience. It pertained to an exact knowledge of the anatomy and the vital organs of a human body and the course of projectiles through it. It cannot be presumed that a jury would not be aided by the technical learning of a medical examiner of experience on such a subject. Commonwealth v. Russ, 232 Mass. 58, 78, 122 N. E. 176;Commonwealth v. Reilly, 248 Mass. 1, 8, 142 N. E. 915.

[9][10] There was no error in the exclusion of testimony proffered by the defendant to the effect that Regione was reputed to be a gunman, of a quarrelsome disposition and under indictment for robbery. This ruling was rightly made on the ground that there was no evidence that the defendant had any knowledge of that disposition. Such evidence is never competent except to show that the defendant acted under apprehension of great bodily harm....