Commonwealth v. Gallo

Decision Date10 April 1931
Citation275 Mass. 320,175 N.E. 718
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Appeal from Superior Criminal Court, Suffolk County.

Samuel Gallo was convicted of murder in the first degree, and he assigns errors.

Judgment on the verdict.F. M. J. Sheenan and D. J. Gillen, Asst. Dist. Attys., both of Boston, for the Commonwealth.

J. J. Kaplan and V. Garro, both of Boston, and J. J. Burns, of Cambridge, for defendant.


A man named Fantasia was killed on a street in Boston on a June afternoon, 1927, by a shot or shots fired from a pistol. A number of persons were in the vicinity. One Cero, running immediately from the scene of the homicide, was followed and shortly was apprehended. He was indicted, tried and convicted of murder in the first degree in November, 1927. Exceptions taken at that trial were overruled in Commonwealth v. Cero, 264 Mass. 264, 162 N. E. 349. At the time of the homicide Cero was employed by the present defendant and had known him about six weeks. There was testimony from which it might have been found that the defendant provided his personal counsel for the defense of Cero, who at his first trial disclaimed all knowledge of the murder. After the conviction of Cero, the defendant continued his activity in behalf of Cero, and assured him that a new trial would be secured. After the sentence of Cero, the defendant attempted to induce, by the payment of money, an important witness for the commonwealth to change his testimony and to sign an affidavit favorable to Cero for use at the hearing on a motion for a new trial. The defendant was found guilty of contempt of court in that connection and was committed to the same jail in which Cero was awaiting execution. In October, 1928, Cero, in the yard of the jail, stabbed the defendant inflicting serious injuries. Shortly before the time set for the electrocution of Cero, he told to certain public officials a story implicating the defendant in the murder of Fantasia. At about the same time, appeared a woman, who said that she was an eyewitness of the murder and that the defendant and not Cero had fired the fatal shots. The execution of Cero was deferred and the present indictment was found in January, 1929, charging the defendant with the murder of Fantasia. At his trial substantially the same witnesses testified as in the trial against Cero, and in addition Cero and the woman also testified in effect that the defendant had caused the death. A verdict of guilty was returned on March 1, 1929. Thus the defendant and Cero, each alone and independently of the other, were charged with the murder of the same man by separate indictments found at different times, and each had separately been convicted of murder in the first degree by a verdict rendered at a trial in which he alone was the defendant. In this state of affairs both those verdicts were set aside by the one judge who had presided over both trials.

1. The two defendants were then ordered to be tried together on these same indictments. At this second trial Cero was acquitted and the defendant was found guilty of murder in the first degree. The defendant in various forms excepted to this procedure and demanded the right to be tried alone. The validity of such joint trial must be determined primarily in the light of decisions of this court and the principles of criminal procedure established in this commonwealth.

Each indictment charged the commission of one and the same crime against society, namely, the murder of Fantasia. Both defendants might have been joined in one indictment. If there had been one such indictment charging both defendants with the commission of that single crime, there could have been no objection in law to a single trial against both defendants. In such case, whether there should be separate trials would rest solely in sound judicial discretion. Commonwealth v. Borasky, 214 Mass. 313, 316, 101 N. E. 377, and cases collected. People v. Snyder, 246 N. Y. 491, 497, 159 N. E. 408.

Two distinct crimes may be charged in different counts of the same indictment and tried at one time. Carlton v. Commonwealth, 5 Metc. 532;Lebowitch v. Commonwealth, 235 Mass. 357, 363, 126 N. E. 831;Commonwealth v. Szczepanek, 235 Mass. 411, 126 N. E. 847;Commonwealth v. Slavski, 245 Mass. 405, 411, 140 N. E. 465, 29 A. L. R. 281, and cases cited. People v. Northcott, 209 Cal. 639, 289 P. 634, 70 A. L. R. 806, and cases collected in note. A defendant charged by separate indictments with two distinct crimes arising out of a single chain of circumstances, which might have been joined by several counts in one indictment, may be required to defend both indictments on a joint trial. Commonwealth v. Rosenthal, 211 Mass. 50, 97 N. E. 609, 47 L. R. A. (N. S.) 955, Ann. Cas. 1913A, 1003. The complaint in Commonwealth v. Miller, 150 Mass. 69, 22 N. E. 434, charged two defendants jointly in two counts with having received stolen goods at different times. At the trial in the district court one defendant was found guilty on both counts and the other was found guilty on one count and acquitted on the other count. Both defendants appealed. In the superior court separate trials were refused, although the result was that on the joint trial one defendant was charged with two distinct offenses and the other with only one offense. It was held that there was no error in denying a separate trial to each defendant. In Commonwealth v. Slavski, 245 Mass. 405, 140 N. E. 465, 29 A. L. R. 281, it was held that two separate complaints charging the defendant with disconnected crimes, which did not arise out of a single chain of circumstances, but which might have been joined by separate counts in a single complaint, might be tried together. This conclusion was reached after a review of decisions and resulted in overruling Commonwealth v. Bickum, 153 Mass. 386, 26 N. E. 1003, on that point. In Commonwealth v. Baldi, 250 Mass. 528, 146 N. E. 11, four separate indictments were tried together, one against B. and M. charging conspiracy to assault and rob X., another charging M. with being accessory before the fact of robbery of X. by B., the third charging B. with assault and robbery from X., and the fourth charging M. with receiving the stolen goods. Upon on all these indictments verdicts of guilty were returned. Four other separate indictments were tried at the same time against the same defendants, in which on the merits verdicts were directed in favor of the defendants. A motion was presented that the commonwealth be ordered to elect upon which indictment to proceed. In holding that there was no error in the denial of that motion, it was said at page 535 of 250 Mass.,146 N. E. 11, 13:‘The court was dealing with a single course of criminal conduct, where the same evidence. * * * would be required to prove’ the crimes charged. While the exact question there decided was not the same as that here raised, it was a close approach to it. In Commonwealth v. Seeley, 167 Mass. 163, 45 N. E. 91, it was held that two persons indicted separately, each for adultery with the other, might be tried together against the objection of the defendants. It is hardly possible to state a sound distinction between that case and the case at bar on that point.

It seems to us to follow necessarily from these decisions that there was no error in law in the order that the two indictments, the one against Cero and the other against the defendant, be tried together. It is manifest that both defendants might have been joined in one indictment and tried together. There was but one murder. The contention of the commonwealth at the trial was that both defendants were guilty as charged. There was evidence to support that contention. That issue was argued to the jury. It was submitted to the jury by the charge of the presiding judge. So far as concerns essentials in the ascertainment of truth and the administration of justice, a joint trial of two defendants on two separate indictments for one crime differs in no respect from a single trial of the same defendants joined in one indictment for the identical crime. Doubtless, after all all the evidence produced in behalf of the commonwealth had been discovered, a joint indictment might have been presented. But the reason for separate indictments found at different times appears to have been ample.

The tendency in recent years, both of legislative enactment and of judicial decision, has been away from formalities in the conduct of criminal trials which have no relation to the essentials of a prompt and fair trial upon defined issues. Criminal pleading has been much simplified and its rigors have been relaxed by statute. Verbiage formerly regarded as necessary to the validity of an indictment has been eliminated. Variance between allegation and proof is no longer as fatal to the possibility of convictionas formerly. Commonwealth v. Gedzium, 259 Mass. 453, 459, 156 N. E. 890, and cases cited; Commonwealth v. Snow, 269 Mass. 598, 600, 601, 169 N. E. 542, 68 A. L. R. 920. While there can be no impairment of constitutional guaranties, defendants charged with crime have no vested rights in matters merely procedural, bearing no vital connection with a real defense, fairly presented, based upon the merits. Traditional tenderness for persons accused of crime, having its origin in governmental, social and legal conditions far different from those now prevalent, cannot stand in the way of expeditious ascertainment of the facts, provided every substantial right of defendants be sedulously safeguarded. There seems to us no difference in sound principle under present conditions between requiring one defendant to proceed to a single trial upon several indictments charging different crimes, and requiring two defendants to proceed to a single trial upon separate indictments charging the same offense. Compare Lumiansky v. Tessier, 213 Mass. 182, 188, 189, 99 N. E. 1051, Ann....

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