Commonwealth v. Gedzium

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtRUGG
Citation259 Mass. 453,156 N.E. 890
Decision Date21 May 1927
PartiesCOMMONWEALTH v. GEDZIUM.

259 Mass. 453
156 N.E. 890

COMMONWEALTH
v.
GEDZIUM.

Supreme Judicial Court of Massachusetts, Middlesex.

May 21, 1927.


Appeal from Superior Criminal Court, Middlesex County; Lourie, Judge.

Jerry Gedzium was indicted for murder, and after verdict he appeals. Judgment on verdict.


[259 Mass. 456]W. E. Weeks, of Boston, for appellant.

F. A. Crafts, Asst. Dist. Atty., of Boston, for the Commonwealth.


RUGG, C. J.

An indictment was returned by the grand jury presenting ‘that John Doe, Richard Roe, and Richard Doe, whose other and true names and more particular descriptions of whom are to said jurors unknown,’ committed murder as therein specified. Subsequently the district attorney moved, ‘the true name of the defendant indicted under the name of John Doe having been discovered to be Jerry Gedzium, that the name of Jerry Gedzium be entered on the record and used in subsequent proceedings, with a reference to the fact that said Jerry Gedzium was indicted by the name of John Doe as mentioned in the indictment.’ The motion was allowed by the court. This indictment was returned and the motion was granted in accordance

[156 N.E. 891]

with the terms of G. L. c. 277, § 19. That section is in these words:

‘If the name of an accused person is unknown to the grand jury, he may be described by a fictitious name or by any other practicable description, with an allegation that his real name is unknown. An indictment of the defendant by a fictitious or erroneous name shall not be ground for abatement; but if at any subsequent stage of the proceedings his true name is discovered, it shall be entered on the record and may be used in the subsequent proceedings, with a reference to the fact that he was indicted by the name or description mentioned in the indictment.’

Thereafter, pursuant to G. L. c. 277, § 65, return of service of copy of the indictment was made by the sheriff to the effect that he had ‘notified the within-named Jerry Gedzium, who was indicted by the name of John Doe, * * * by giving him in hand an attested copy of the indictment. * * *’

The defendant was permitted to withdraw his general plea and to file a motion to quash the indictment on the ground that it did not allege what person had committed the crime, that it did not allege that the defendant had committed the crime, that it did not disclose the identity of the person charged with crime, that it did not comply with the requirements of G. L. c. 277, § 19, and that it violated [259 Mass. 457]article 5 of the amendments to the Constitution of the United States and articles 12 and 14 of the Declaration of Rights of this commonwealth.

[1]Article 5 of the amendments to the Constitution of the United States may be dismissed from consideration because that amendment does not govern the actions of the several states but only those of the federal government. Commonwealth v. Hitchings, 5 Gray, 482, 485;Commonwealth v. Wilkins, 243 Mass. 356, 361, 138 N. E. 11, and cases there collected; Tapper v. Boston Chamber of Commerce, 249 Mass. 236, 240,144 N. E. 89;Spies v. Illinois, 123 U. S. 131, 166, 8 S. Ct. 21, 22, 31 L. Ed. 80.

If it were not for G. L. c. 277, § 19, plainly the indictment would have been insufficient. It was held in Commonwealth v. Crotty, 10 Allen, 403, 87 Am. Dec. 669, with respect to a warrant in form similar to the indictment in the case at bar, that it was void and that, when the name of a party was unknown, the best description possible of the person must be given and one sufficient to indicate clearly on whom it is to be served, ‘by stating his occupation, his personal appearance and peculiarities, the place of his residence, or other circumstances by which he can be identified.’ To the same effect is West v. Cabell, 153 U. S. 78, 14 S. Ct. 752, 38 L. Ed. 643. See Ex parte Bain, 121 U. S. 1, 7 S. Ct. 781, 30 L. Ed. 849; Rex v. Hood, 1 Moody, 281, 289; Duffy v. Keville (D. C.) 16 F. (2d) 828;United States v. Doe (D. C.) 127 F. 982, 983.

[2][3] It is to be observed that the statute here attacked does not authorize the amendment of the indictment. It is certain that in the absence of an enabling statute an indictment cannot be amended. Commonwealth v. Mahar, 16 Pick. 120; Ex parte Bain, 121 U. S. 1, 7 S. Ct. 781, 30 L. Ed. 849. Compare Commonwealth v. Hlley, 3 Gray, 458. The indictment in the case at bar was not amended. It remains precisely as returned by the grand jury. The record subsequent to the return of the indictment is amplified and made specific as to the real name of the defendant. The procedure is somewhat analogous to specifications required by G. L. c. 277, § 40, which must be furnished as matter of right and which must be read with the indictment for a full description of the crime charged. Commonwealth v. Farmer, 218 Mass. 507, 509, 106 N. E. 150;[259 Mass. 458]Commonwealth v. Howard, 205 Mass. 128, 145, 91 N. E. 397;Commonwealth v. Peakes, 231 Mass. 449, 456, 121 N. E. 420.

[4][5] There is nothing in the record to warrant the conclusion that the grand jury in framing the indictment in the case at bar did not follow the terms of said section 19. The defendant was described by a fictitious name. It does not appear that any other description of his personality was practicable. It is stated in the indictment that the grand jury did not know the true names of the defendants and were unable to give any more particular descriptions of them. Such an assertion by the grand jury may be presumed to be true. The great question in the case is whether said section 19 is contrary to the guaranties contained in article 12 of the Declaration of Rights. That article provides that--

‘No subject shall be held to answer for any crimes or offense, until the same is fully and plainly, substantially and formally, described to him; * * * and no subject shall be * * * deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.’

‘The law of the land’ in this connection has been held to mean due process of law and to include, so far as concerns liability to capital or infamous punishment, indictment by a grand jury. The essential features of the grand jury as it existed at the adoption of the Constitution must be sedulously preserved. The principle has been illustrated by several decisions covering a long period of time. Jones...

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51 practice notes
  • Com. v. DiMarzo
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 28, 1974
    ...extends to places without as well as within the county where the crime is alleged to have been committed.' Commonwealth v. Gedzium, 259 Mass. 453, 462, 156 N.E. 890, 893 (1927), overruled on other grounds in CONNOR V. COMMONWEALTH, MASS. (1973), 296 N.E.2D 172,B and cases cited. There is a ......
  • Commonwealth v. Welansky
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 5, 1944
    ...knowledge of the crime with which he is charged.’ Commonwealth v. Hayes, 311 Mass. 21, 25, 40 N.E.2d 27, 31.Commonwealth v. Gedzium, 259 Mass. 453, 457, 156 N.E. 890;Commonwealth v. Albert, 307 Mass. 239, 243, 29 N.E.2d 817. There is nothing in the motions to quash. There is still less, if ......
  • Com. v. Dominico
    • United States
    • Appeals Court of Massachusetts
    • January 31, 1974
    ...rests within the discretion of the trial court. Commonwealth v. Chance, 174 Mass. 245, 247, 54 N.E. 551 (1899). Commonwealth v. Gedzium, 259 Mass. 453, 462, 156 N.E. 890 (1927), overruled on other grounds in CONNOR V. COMMONWEALTH, MASS. (1973) , 296 N.E.2D 172.I Commonwealth v. Lamoureux, ......
  • Picard v. Connor 8212 96, No. 70
    • United States
    • United States Supreme Court
    • December 20, 1971
    ...construed by the Massachusetts courts, with the result that he had not been lawfully indicted for the crime. See Commonwealth v. Gedzium, 259 Mass. 453, 156 N.E. 890 (1927).5 The only suggestions of a claimed denial of a federal right were statements in respondent's brief questioning the co......
  • Request a trial to view additional results
51 cases
  • Com. v. DiMarzo
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 28, 1974
    ...extends to places without as well as within the county where the crime is alleged to have been committed.' Commonwealth v. Gedzium, 259 Mass. 453, 462, 156 N.E. 890, 893 (1927), overruled on other grounds in CONNOR V. COMMONWEALTH, MASS. (1973), 296 N.E.2D 172,B and cases cited. There is a ......
  • Commonwealth v. Welansky
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 5, 1944
    ...knowledge of the crime with which he is charged.’ Commonwealth v. Hayes, 311 Mass. 21, 25, 40 N.E.2d 27, 31.Commonwealth v. Gedzium, 259 Mass. 453, 457, 156 N.E. 890;Commonwealth v. Albert, 307 Mass. 239, 243, 29 N.E.2d 817. There is nothing in the motions to quash. There is still less, if ......
  • Com. v. Dominico
    • United States
    • Appeals Court of Massachusetts
    • January 31, 1974
    ...rests within the discretion of the trial court. Commonwealth v. Chance, 174 Mass. 245, 247, 54 N.E. 551 (1899). Commonwealth v. Gedzium, 259 Mass. 453, 462, 156 N.E. 890 (1927), overruled on other grounds in CONNOR V. COMMONWEALTH, MASS. (1973) , 296 N.E.2D 172.I Commonwealth v. Lamoureux, ......
  • Picard v. Connor 8212 96, No. 70
    • United States
    • United States Supreme Court
    • December 20, 1971
    ...construed by the Massachusetts courts, with the result that he had not been lawfully indicted for the crime. See Commonwealth v. Gedzium, 259 Mass. 453, 156 N.E. 890 (1927).5 The only suggestions of a claimed denial of a federal right were statements in respondent's brief questioning the co......
  • Request a trial to view additional results

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