Commonwealth v. Gallo
| Decision Date | 09 April 1931 |
| Citation | 275 Mass. 320 |
| Parties | COMMONWEALTH v. SAMUEL GALLO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
March 2, 6, 1931.
Present: RUGG, C.
J., CROSBY, PIERCE WAIT, & SANDERSON, JJ.
Practice, Criminal Trial of indictments together, Arguments of counsel. Constitutional Law, Due process of law, Right to meet adverse witnesses face to face. Evidence, Testimony at former trial Declaration of deceased person, Competency, Remoteness. Witness, Absent witness. Statute, Construction. Words "Suit," "Action." The trial of an indictment for murder resulted in a verdict of guilty.
Subsequently another indictment was returned charging another defendant with the same murder, and the trial thereof also resulted in a verdict of guilty. There was evidence to support the verdict at each trial. A judge of the Superior Court thereafter allowed a motion for a new trial of each indictment and ordered that they be tried together.
The first defendant was acquitted and the second defendant was found guilty. Upon an appeal with an assignment of errors by the second defendant, it was held, that there was no error of law nor abuse of discretion in the order that the indictments be tried together.
At the first trial of the indictment above described against the second defendant, a witness testified for the Commonwealth, and was cross-examined fully by the defendant, his testimony being taken stenographically. The judge at the second trial heard evidence and found that the Commonwealth had tried industriously to discover the witness and to produce him to testify, and had made diligent search for him within and without the Commonwealth, without avail, and was unable to call him as a witness; and thereupon ruled that the testimony given by the witness at the first trial might be read to the jury. Held, that
(1) There was no error of law in the ruling by the judge; (2) The ruling did not violate the rights of the defendant under art. 12 of the Declaration of Rights;
(3) Such testimony was not to be excluded at the second trial on the ground that the issue thereat was different from that in the first trial: the issue as to the second defendant was the same at both trials, notwithstanding the circumstance that the second trial was had together with the second trial of the other indictment. G.L.c. 233, Section 65, does not apply to prosecutions for crime.
It further was held, upon the appeal with an assignment of errors above described, that
(1) There was no error of which the appellant could complain in allowing the first defendant, who, immediately after his arrest for the murder had told a story touching his own and the appellant's connection with the homicide materially different from his testimony at the second trial, to testify when and to whom he first told the story concerning the murder which he told on the witness stand: the time and conditions when the altered story was first uttered were not immaterial;
(2) Certain evidence offered by the appellant, which did not have any tendency to contradict testimony by the first defendant that he never told anybody at any time that some one other than the appellant committed the murder, and which at most might contradict testimony by another witness that he had never heard any one other than the appellant accused of the crime, rightly was excluded as immaterial;
(3) Evidence, offered by the appellant, that the father of the first defendant had died before the murder was committed, had no tendency in the circumstances to contradict testimony by the first defendant that his brother, dressed in black, visited him in jail after the murder and told him that his father had died in Italy of a broken heart because he was in jail: such evidence was immaterial and remote and properly was excluded;
(4) There was no error in the admission of testimony to the effect that the appellant had ordered cigarettes sent to the first defendant and had employed a lawyer for him: the relations between these two were a part of the circumstances and might have some bearing upon the guilt or innocence of one or both;
(5) The rights of the appellant, as to certain improper references made in the closing arguments to the jury by the district attorney and the attorney for the first defendant, were protected by prompt instructions to the jury by the trial judge that the references should be disregarded.
INDICTMENT, found and returned on January 9, 1929, charging the defendant with murder.
The indictment was tried in the Superior Court before Cox, J. The defendant was found guilty. In the circumstances described in the opinion, the judge allowed the defendant's motion for a new trial, and the indictment was tried again with an indictment against one Cero before W.A. Burns, J. The defendant was found guilty and filed an appeal with an assignment of errors.
J.J. Kaplan, (V. Garro & J.J. Burns with him,) for the defendant. F.M.J. Sheenan, Assistant District Attorney, (D.J. Gillen, Assistant District Attorney, with him,) for the Commonwealth.
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 . 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 defence 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 eye witness 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, and cases collected. People v. Snyder, 246 N.Y. 491, 497.
Two distinct crimes may be charged in different counts of the same indictment and tried at one time. Carlton v. Commonwealth, 5 Met. 532. Lebowitch v. Commonwealth, 235 Mass. 357 , 363. Commonwealth v. Szczepanek, 235
Mass. 411.
Commonwealth v. Slavski, 245 Mass. 405 , 411, and cases cited. People v. Northcott, 209 Cal. 639; S.
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 . The complaint in Commonwealth v. Miller, 150 Mass. 69, 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 offences and the other with only one offence. It was held that there was...
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