Commonwealth v. Gedzium

Decision Date21 May 1927
Citation259 Mass. 453,156 N.E. 890
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


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

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

W. E. Weeks, of Boston, for appellant.

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


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 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 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;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 v. Robbins, 8 Gray, 329;Commonwealth v. Harris, 231 Mass. 584, 121 N. E. 409;Opinion of Justices, 232 Mass. 601, 123 N. E. 100;Lebowitch, Petitioner, 235 Mass. 357, 126 N. E. 831;Klous v. Judges of Municipal Court, 251 Mass. 292, 146 N. E. 783. No change in the essential features of the grand jury system ‘can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law and protect the citizen in his private right, and guard him against the arbitrary action of government.’ Twining v. New Jersey, 211 U. S. 78, 101, 29 S. Ct. 14, 53 L. Ed. 97. See, in this connection, Fisher v. McGirr, 1 Gray, 1, 21, 37, 61 Am. Dec. 381.

Elementary characteristics of the grand jury, even that relating to the secrecy of its proceedings, are not to be extended so far as to constitute perversions of the principle on which those characteristics rest. Attorney General v. Pelletier, 240 Mass. 264, 307, 310, 134 N. E. 407, and cases there collected. Statutes have been enacted from time to time authorizing the elimination of the verbiage formerly regarded as necessary to the validity of an indictment, and abolishing to a considerable extent variance between allegation and proof as fatal to establishment of guilt. These states have been held not to contravene any of the essentials preserved by said article 12. It is not necessary to review these decisions. Commonwealth v. Hall, 97 Mass. 570, 573;Commonwealth v. Morgan, 107 Mass. 199, 205;Commonwealth v. Hatfield, 107 Mass. 227, 231;Commonwealth v. Cabot, 241 Mass. 131, 142, 135 N. E. 465;Commonwealth v. Freelove, 150 Mass. 66, 22 N. E. 435;Commonwealth v. Bennett, 118 Mass. 443, 452;Commonwealth v. Jordan, 207 Mass. 259, 266, 268, 93 N. E. 809, and cases there collected. See, in this connection, Weems v. United States, 217 U. S. 349, 363, 30 S. Ct. 544, 54 L. Ed. 793, 19 Ann. Cas. 705. It was not the purpose of the Constitution in said article 12 to render binding upon the Legislature for all time minor details or unessential formalities in connection with the grand jury not affecting its vital characteristics. In holding that a statute allowing an amendment to an indictment in respect to a former conviction did not violate article 12 of the Declaration of Rights, it was said by Chief Justice Shaw in Commonwealth v. Holley, 3 Gray, 458, 459, 460:

‘The great principle asserted by the Declaration of Rights is that no man shall be put to answer a criminal charge until the criminating evidence has been laid before a grand jury, and they have found probable cause, at least, to believe the facts true on which the criminality depends. But, in setting forth a former conviction, they aver no fact resting on testimony, except that of identity of the person charged with the person before convicted. That fact being found, all the particulars respecting the former conviction, as to the nature of the crime, the time and circumstances of its commitment, the time when and the court before whom the conviction was had, and the sentence awarded, must be proved by matter of record, altogether more certain in its nature than any finding of a grand jury, upon an ex parte hearing, possibly can be. And such prior conviction, being a judgment against the party himself, is necessarily one of which he is conusant, and by which he is concluisively bound. We think, therefore, that the Legislature might well avail themselves of these considerations, to provide that, when, on the trial of such indictment, the description of such previous conviction shall be found to be imperfect, inexact, or in any respect variant from the record, it may be amended in court, so...

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