Commonwealth v. Gedzium
| Decision Date | 19 May 1927 |
| Citation | 259 Mass. 453 |
| Parties | COMMONWEALTH v. JERRY GEDZIUM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 4, 1927.
Present: RUGG, C.
Homicide. Practice Criminal, "John Doe" proceedings, Recording defendant's true name under G.
L.c. 277, Section 19, View. Grand Jury. Pleading, Criminal, Indictment. Evidence, Competency. Constitutional Law.
Art. 5 of the Amendments to the Constitution of the United States does not govern the actions of the several States but only those of the Federal government.
G.L.c. 277, Section 19, does not authorize the amendment of an indictment but merely authorizes, in the circumstances therein described, an amplification of the record subsequent to the indictment to make it specific as to the real name of the defendant.
An indictment charged "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. Held, that there was nothing in such a record warranting a conclusion that the grand jury in framing the indictment did not follow the terms of G.L.c. 277, Section 19; and the assertion by the grand jury that they did not know the true names of the defendants and were unable to give any more particular descriptions of them must be presumed to be true.
While 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, it was not the purpose of the Constitution of the Commonwealth in art. 12 of the Declaration of Rights to render binding upon the
Legislature for all time minor details or unessential formalities in connection with the grand jury which do not affect its vital characteristics.
Section 19 of G.L.c. 277 is not a violation of art. 12 of the Declaration of Rights.
A fictitious description of an actual person by a grand jury in an indictment, when that is the best description obtainable, if authorized by legislative enactment does not violate the provisions of art. 12 of the Declaration of Rights.
There being nothing in the record as to the indictment above described to warrant the inference that the grand jury, in framing the indictment, did not use all the information within its reach in describing the defendant, and did not have in mind a particular person, of whom no better description could be given than a fictitious name, it could not rightly be construed as an indictment in blank, usable at will against any member of the community.
In order for a motion under G.L.c. 277, Section 19, to have effect, it must be allowed by the court, and such an allowance when made presupposes the finding by the court of all the facts essential thereto, to the end that no injustice be done to any defendant.
The ordering by the judge, presiding at the trial of a murder alleged to have been committed in Cambridge, of a view by the jury which included not only the scene of the alleged murder in Cambridge but also places in another county thought to be relevant to the charge against the defendant, is within the discretionary power of the judge.
At the trial of the indictment above described, there was no error in the admission of testimony of a witness that he had known a certain woman, whose identity was a material issue, for two years and had known her also under another name and had received information from the woman herself that she was known under both names.
INDICTMENT, found and returned on October 9, 1925, for the murder of Edward C. Ross on September 29, 1925.
On August 25, 1926, the district attorney moved "that in the above entitled case, the true name of the defendant indicted under the name of John Doe having been discovered to be Jerry Gedzium, that the name 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.
The record states that, "it appearing to the court that the said indictment charged the said defendant with a crime punishable with death, the said Gedzium was served with an attested copy of the indictment and of the order of the court thereon," which was that, the indictment "being returned by the Grand Jury into court here, and it appearing to the court that the said indictment charges the said Jerry Gedzium, who was indicted by the name of John Doe, with a crime punishable with death, it is, on this eighth day of September, 1926, being the second day of said sitting, ordered by the court here, that the said Jerry Gedzium be held in the custody of the sheriff of said county of Middlesex to answer to said indictment at the said Superior Court, and that the said Jerry Gedzium be notified that said indictment will be entered forthwith upon the docket of said Superior Court, by causing him to be served with an attested copy of said indictment with this order thereon, as soon as conveniently may be."
The clerk thereupon entered in the record the following: "This indictment, being for a crime punishable with death, and having been returned by the grand jury into court here, at the present sitting thereof, I hereby enter the same, together with the orders of this court thereon, upon the docket of said Superior Court for said county of Middlesex, there to be proceeded upon according to law." An attested copy of the indictment and of the above order then were served upon Gedzium.
A motion to quash the indictment described in the opinion was heard by Lourie, J., and was denied. The defendant was placed on trial on November 15, 1926. On November 24, 1926, he was found guilty of murder in the first degree. The appeals and the assignment of alleged errors, described in the opinion, were filed on February 28, 1927.
W.E. Weeks, for the defendant.
F.A. Crafts, Assistant District Attorney, 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, Section 19. That section is in these words: Thereafter, pursuant to G.L.c. 277, Section 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 to 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 grounds 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, Section 19, and that it violated art. 5 of the Amendments to the Constitution of the United States and arts. 12 and 14 of the Declaration of Rights of this Commonwealth.
Art. 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, and cases there collected. Tapper v. Boston Chamber of Commerce, 249 Mass. 235 , 240. Spies v. Illinois, 123 U.S. 131, 166.
If it were not for G.L.c. 277, Section 19, plainly the indictment would have been insufficient. It was held in Commonwealth v. Crotty, 10 Allen, 403, 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. See Ex parte Bain, 121 U.S. 1, Rex v. Hood, 1 Moody, C.C. 281, 289, Duffy v. Keville, 16 F. (2d) 828, United States v. Doe, 127 F. 982, 983.
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 supra. Compare Commonwealth v. Holley, 3 Gray, 458. The indictment in the case at bar was not...
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