Commonwealth v. Gedzium

• Decision Date: 23 November 1927
• Citation: 159 N.E. 51,261 Mass. 299
• Parties: COMMONWEALTH v. GEDZIUM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 299

159 N.E. 51

COMMONWEALTH

v.GEDZIUM.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 23, 1927.

Exceptions and Appeal from Superior Court, Middlesex County; David F. Dillon, Judge.

Jerry Gedzium, indicted by the name John Doe, was convicted of first degree murder, and from a denial of defendant's motion for leave to inspect minutes and report of evidence before grand jury, for list of names of witnesses before grand jury for hearing on motion for new trial before judge presiding at trial and of the motion for a new trial, he excepts and appeals. Affirmed.

William E. Weeks, of Boston, for appellant.

Robert T. Bushnell, Dist. Atty., and Frederic A. Crafts, Asst. Dist. Atty., both of Boston, for the Commonwealth.

SANDERSON, J.

The defendant was convicted of murder in the first degree by a jury, and the exceptions taken at the trial were overruled. Commonwealth v. Gedzium (Mass.) 156 N. E. 890. Thereupon the defendant filed a motion for new trial and a motion to inspect the minutes of, and to read the testimony introduced before, the grand jury which returned the indictment. On May 25, 1927, the district attorney presented to the judge then holding a session of the criminal court in Middlesex county, a motion that, in the absence of the judge who presided at the trial, the motion for a new trial be set down for hearing forthwith and that the defendant be sentenced according to law. At the hearing on this motion, June 1, 1927, the judge found that the trial judge was ill and unable to preside without grave injury to his health, and allowed so much of the district attorney's motion as asked that the motion be set down for hearing forthwith. On June 22, 1927, a motion to amend the motion for a new trial was allowed and, on the same date, the defendant filed a motion for leave to inspect the minutes of and to read the testimony introduced before the grand jury in an alleged John Doe investigation of the robbery and murder at the Ward Baking Company, September 29, 1925. He also filed a motion that the hearing upon his motion for a new trial with affidavits be heard by the judge who presided at the trial. After hearing, each of these motions was denied, and the judge indorsed thereon his finding that the trial judge, at the time of the filing of the motions, the hearings thereon, and the determination thereof, was ill and physically unable to discharge his judicial duties. He also stated that he had read and reviewed the record of the testimony given at the trial as transcribed by the official stenographer, together with arguments of counsel and the charge of the trial judge. The defendant excepted to and claimed an appeal from the denial of the motions.

The first question to be decided is whether, upon the facts disclosed by the record, a judge who did not preside at the trial could hear and decide the motion for a new trial.

[1] ‘The governing rules of law as to motions for a new trial in capital cases are the same as in civil and in other criminal cases.’ Commonwealth v. Devereaux, 257 Mass. 391, 395, 153 N. E. 881, 882. The only statutory provision concerning such motions in criminal cases is in the following terms:

‘The superior court may, at the sitting in which an indictment is tried, or within one year thereafter, or in capital cases, within said year or at any time before sentence, upon motion in writing of the defendant, grant a new trial for any cause for which by law a new trial may be granted or if it appears to the court that justice has not been done. * * *’ St. 1922, c. 508, amending G. L. c. 278, § 29.

It is provided in G. L. c. 212, § 2, that:

‘The court shall be held by one of the justices, and when so held shall have and exercise all the power and jurisdiction committed to said court.’

[2][3] A distinction between acts required by the Legislature to be done by a judge or by the justices of a court and those which are to be done by the court has been recognized in our decisions. “The superior court,' as used in the statutes means the court held, whether by one or more judges, at a time and place established by law for the judicial administration of justice.' Catheron v. County of Suffolk, 227 Mass. 598, 602, 116 N. E. 885. In that case (page 603 ) the court, in referring to acts that may be done by a judge holding court and those which must be done by the justices constituting the court, said that in general it was true that ‘when the court is referred to in the statutes in connection with the superior bench, the justices constituting the court are not intended; but the judge or judges holding the court according to law.’ Greenwood v. Bradford, 128 Mass. 296, 297. It is of some significance in connection with this matter that the Legislature required ‘the court’ to pass upon motions for new trials while the statute in regard to bills of exceptions provides that they shall be passed upon by the ‘presiding justice.’ G. L. c. 278, § 31. It has been held that a judge who did not hear the case may enter an order vacating a judgment under a statute which authorizes ‘the court’ to do it. R. L. c. 193, §§ 14-17 (now G. L. c. 250, §§ 14-17); Rollins v. Bay View Auto Parts Co., 239 Mass. 414, 423, 132 N. E. 177.

[4][5][6] The hearing of a motion for a new trial by a judge who did not preside at the trial was within his jurisdiction. In Lutolf v. United Electric Light Co., 184 Mass. 53, 67 N. E. 1025, it was held that if a defendant voluntarily proceeds after the death of the judge who presided at the trial to have a motion for a new trial heard by another judge, the defendant cannot be heard to say that the judge who had heard the motion could not deny it. The case of Commonwealth v. Peck, 1 Metc. 428, recognizes the right under Rev. St. c. 138, § 14, of either the Supreme Judicial Court or the trial court to hear and pass upon motions for new trials. In the opinion, by Chief Justice Shaw, it was said (pages 434, 435):

‘We are aware of the difficulty and inconvenience of sustaining a motion for a new trial, in this court, for causes arising in the trial before the court of the common pleas, because, in the course of practice, we can have no report showing the evidence and proceedings in that court. Sometimes, perhaps, the difficulty arising from this cause may be insurmountable. But we think this does not affect the authority and jurisdiction of the court over the subject matter. Other cases may occur, where the grounds are of such a nature, that without a report from the judge, the party moving for a new trial may be able to establish the merits of his case; as where the ground depends upon matter extraneous, like that of the misconduct of parties in tampering with jurors. In other cases, the newly discovered evidence may be of so decisive a nature, as to warrant a new trial, whatever may have been the evidence upon the first trial.’

The case was remanded to the court of common pleas for the hearing of the motion. In Commonwealth v. Scott, 123 Mass. 418, 419, the court, in an opinion by Chief Justice Gray, said:

‘Under former statutes, by which an appeal, a bill of exceptions or a report transferred the whole case, it was within the power of this court, while the case remained here, to entertain a motion for a new trial for any cause; but it was not its practice to decide such a motion, when it might be heard in the court below.’

As a general rule the granting or denial of a motion for a new trial rests in the sound discretion of the trial judge. Commonwealth v. Dascalakis, 246 Mass. 12, 24, 140 N. E. 470;Commonwealth v. Gettigan, 252 Mass. 450, 464, 148 N. E. 113. If the presiding judge dies while a motion for new trial is pending, the granting of that motion is ‘at the discretion of the court where the trial was had.’ Borrowscale v. Bosworth, 98 Mass. 34, 38.

In Benson v. Hall, 197 Mass. 517, 518, 519, 83 N. E. 1036, the court was considering a case in which the judge who presided at the trial had died, and another judge of the same court decided a motion for a new trial after denying the defendant's motion that the verdict be set aside and a new trial ordered because of the death of the trial judge. In the opinion the court said:

‘It is the defendant's argument, that only the judge who presided could act, and that his decease operated as an allowance of the motion. But while the defendant had asked for a review of the trial, and the judge to whom he applied was prevented by death from taking judicial action, the tribunal of which he was a member survived. The discretionary power of the court had been invoked, and if the great advantage which the parties would have derived from being heard by the judge who presided at the trial had been irretrievably lost, yet the defendant did not withdraw his motion, and, until it had been disposed of, the plaintiff could not obtain judgment. In this situation it was open to either party to make application for a hearing to the court whose members severally were clothed with the same powers, and who possessed the absolute right to hear and determine all matters which remained undecided in the case. It was, therefore, within their discretion, as it had been in his, either to grant or to refuse a second trial.’

From this decision it would seem to be the settled law of this commonwealth that in case of the death of the trial judge some other judge of the same court has the right to pass upon a motion for a new trial.

In Commonwealth v. Sacco (Mass.) 158 N. E. 167, the question of the propriety of the judge who sat in the case hearing and deciding a motion for a new trial was not decided, because it was held that ‘neither the judge nor any of his associates had jurisdiction to entertain the motion.’ In other jurisdictions it has been held that if the trial judge dies after verdict, or for some other reason is unable to hold the court, another judge may pass upon a motion for a new trial. Life & Fire Ins. of New York v. Wilson, 8...