Commonwealth v. Gricus

• Decision Date: 11 December 1944
• Citation: 58 N.E.2d 241,317 Mass. 403
• Parties: COMMONWEALTH v. GRICUS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 403

58 N.E.2d 241

COMMONWEALTH

v.GRICUS.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 11, 1944.

Francis V. J. Gricus was convicted of murder in the first degree, and defendant appeals.

Affirmed.Appeal from Superior Court, Middlesex County; Good, Judge.

Before FIELD, C. J., and LUMMUS, QUA, RONAN, and SPALDING, JJ.

M. King and A. Gottlieb, both of Boston, for appellant.

A. W. Wunderly, Asst. Dist. Atty., of Boston, for Commonwealth.

LUMMUS, Justice.

This is an indictment charging the defendant in a single count with the murder of Lillian Parent on November 28, 1943. Specifications furnished by the Commonwealth set forth the time of the offence as at or about 1 o'clock in the morning of that day, the place as that section of Waltham known as the South Side, and the manner of killing as by assault and beating. After a verdict of guilty of murder in the first degree, a sentence of death was imposed, and the execution of the sentence was stayed, as required by G.L. (Ter.Ed.) c. 279, § 4, as amended by St.1935, c. 50, § 3; c. 437, § 3. See Commonwealth v. Millen, 290 Mass. 406, 195 N.E. 541;Fine v. Commonwealth, 312 Mass. 252, 44 N.E.2d 659, 145 A.L.R. 392. A motion for a new trial on the three grounds that the verdict was against the law, the evidence, and the weight of the evidence was denied. The case comes here upon two appeals, one relating to the trial, and the other relating to the denial of a new trial. The appeals are accompanied by an assignment of errors, a summary of the record, and a transcript of the evidence, as required by G.L. (Ter.Ed.) c. 278, §§ 33A-33G, as amended by St.1939, c. 341.

The errors assigned are two in number, (1) the denial of the defendant's motion that the judge ‘direct a verdict of ‘not guilty,” and (2) the denial of the motion for a new trial. Before our powers on appeal in capital cases were enlarged by St.1939, c. 341 (G.L.[Ter.Ed.] c. 278, § 33E), an appeal ordinarily brought here nothing but questions of law specifically raised by exceptions and then incorporated in assignment of errors. Commonwealth v. Gray, 314 Mass. 96, 102, 49 N.E.2d 603. And the statute as to exceptions restricts them to ‘an opinion, ruling, direction or judgment of the superior court rendered upon any question of law.’ G.L.(Ter.Ed.) c. 278, § 31.

The questions of law raised by the assignment of errors do not appear formidable. A defendant may be convicted of manslaughter upon an indictment charging murder. Commonwealth v. Wakelin, 230 Mass. 567, 572, 573, 120 N.E. 209. There was ample evidence from admissions by the defendant that Lillian Parent was killed by blows of the first intentionally delivered by the defendant without any justification. A defendant who commits any unjustified battery that happens to cause death is guilty of manslaughter. Commonwealth v. Welansky, 316 Mass. 383, 401, 55 N.E.2d 902;Commonwealth v. Demboski, 283 Mass. 315, 322, 186 N.E. 589. Since the defendant could properly be convicted of manslaughter at least, there was no error of law in refusing to direct a verdict of not guilty.

The question of law whether a verdict of guilty of murder in the first degree could be rendered upon the evidence conformably to the law, could have been raised at the trial. Maloof v. Post Publishing Co., 306 Mass. 279, 281, 28 N.E.2d 458. Compare Rule 71 of the Superior Court (1932). For that reason that question cannot be brought here upon exceptions to the denial of a motion for a new trial. Even in a capital case, a party may not bring up by exceptions to the denial of a motion for a new trial a question of law that he raised or could have raised at the trial. Commonwealth v. Dascalakis, 246 Mass. 12, 24, 25, 140 N.E. 470;Commonwealth v. Cero, 264 Mass. 264, 275, 162 N.E. 349;Commonwealth v. Osman, 284 Mass. 421, 426, 188 N.E. 226;Commonwealth v. Barker, 311 Mass. 82, 93, 40 N.E.2d 265;Commonwealth v. Venuti, 315 Mass. 255, 261, 52 N.E.2d 392.

The third ground of the motion for a new trial, that the verdict was against the weight of the evidence, was addressed to the discretion of the trial judge, who had power to grant a new trial when ‘necessary to prevent a failure of justice’ (Ellis v. Ginsburg, 163 Mass. 143, 146, 39 N.E. 800, 801), or when the verdict, if allowed to stand, ‘would work injustice such as the courts ought not to tolerate.’ Loveland v. Rand, 200 Mass. 142, 145, 85 N.E. 948, 950. No rulings of law were made or requested upon the motion for a new trial. The question whether a verdict is contrary to the weight of the evidence is, upon analysis, one of fact, although commonly spoken of as one of discretion. Commonwealth v. Dascalakis, 246 Mass. 12, 24, 140 N.E. 470;Lonergan v. American Railway Express Co., 250 Mass. 30, 39, 144 N.E. 756Thorndike, Petitioner, 254 Mass. 256, 259, 150 N.E. 296;McKin v. Siegel, 256 Mass. 269, 152 N.E. 312;Malden Trust Co. v. Perlmuter, 278 Mass. 259, 261, 179 N.E. 631. Only in rare instances, of which this is not one, can it be held that the denial of a motion for a new trial is an abuse of discretion amounting to an error of law. Bartley v. Phillips, 317 Mass. 35, 44, 57 N.E.2d 26. The record before us shows no error of law pointed out by any assignment of error.

Statute 1939, c. 341,¹ amending G.L.(Ter.Ed.) c. 278, § 33E, provides that the entry of a capital case in the Supreme Judicial Court, ‘shall transfer to that court the whole case for its consideration of the law and the evidence,’ and that ‘the court may order a new trial if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require.’ That statute opens the facts as well as the law for our consideration. It does not, however, convert this court into a second jury, which must be convinced beyond a reasonable doubt of the guilt of a defendant by reading the reported evidence, without the advantage of seeing and hearing the witnesses. This has been decided under comparable statutes in other jurisdictions, some applicable to capital cases and others applicable to criminal cases in general. People v. Cashin, 259 N.Y. 434, 441, 442, 182 N.E. 74;People v. Becker, 215 N.Y. 126, 136, 109 N.E. 127, Ann.Cas.1917A, 600, quoted by Thacher, J., in People v. Williams, 292 N.Y. 297, 304, 55 N.E.2d 37;State v. Woodworth, 121 N.J.L. 78, 90, 91, 1 A.2d 254; Webb v. His Majesty's Advocate, 1927 J.C. (Scot.) 92; Slater v. His Majesty's Advocate, 1928 J.C. (Scot.) 94, 101. But the statute of 1939 does give us the power and the duty exercised by a trial judge upon a motion for a new trial. So far as the weight of the evidence is concerned, it is the right and duty of a trial judge to set aside a verdict ‘when in his judgment it is so greatly against the weight of the evidence as to induce in his mind the strong belief that it was not due to a careful consideration of the evidence, but that it was the product of bias, misapprehension or prejudice.’ Scannell v. Boston Elevated Railway, 208 Mass. 513, 514, 94 N.E. 696;Bartley v. Phillips, 317 Mass. 35, 41, 57 N.E.2d 26. ‘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. For a trial judge, or for this court under the statute of 1939, to grant a new trial on the ground that the verdict was against the weight of the evidence, it must appear that the verdict, if allowed to stand, would work a miscarriage of justice. Commonwealth v. Dascalakis, 246 Mass. 12, 22, 23, 140 N.E. 470;Bartley v. Phillips, 317 Mass. 35, 41, 57 N.E.2d 26. It is not enough that the judge or judges, if on the jury, would have felt a reasonable doubt which the jury did not share.

However restricted or unfounded may be the propositions of law raised by an appeal in a capital case (and such a case can no longer be brought here upon exceptions, G.L.(Ter.Ed.) c. 278, § 31), when a capital case once gets to this court on appeal, the statute of 1939 now requires us to consider the whole case broadly, to see whether there was any miscarriage of justice. The statute requires us to exercise in capital cases an extraordinary power intimated before though seldom if ever exercised (Commonwealth v. Dascalakis, 246 Mass. 12, 25, 140 N.E. 470;Carangias v. Market Men's Relief Association, Inc., 293 Mass. 284, 285, 199 N.E. 924), and to extend that power to questions of fact as well as those of law.

We proceed to consider the facts in the light of our power and duty under the statute of 1939.

The following facts could have been found upon the evidence. Lillian Parent was a married woman living in Waltham with her husband and three small children. Her husband's mother, who lived with them, was a paralytic, unable to walk without help. Mrs. Parent cared for her and the children, and kept the house. Naturally either Mrs. Parent or her husband had to remain at home practically all the time. She was a very small woman, four feet ten inches tall, and weighing eighty pounds. November 27, 1943, was her thirty-seventh birthday. After the evening meal, about nine o'clock, she went out alone to celebrate her birthday.

She spent a short time with a woman friend, and the rest of the evening sitting alone in different restaurants, drinking ale and beer. Shortly before midnight she was sitting alone in a resort called Antonette's Cafe at 24 Charles Street, Waltham. She went out when the place closed, shortly before midnight, at the same time as a man whom she knew slightly and her husband knew well. She walked with that man to a house in which he lived, apart from his wife, on the first floor. In the house she took off her coat, and sat on a divan with him, and began to caress him while begging him to take her out to some other resort. He told her that he had no money, but he responded to her caresses, and in so doing put his hand on her...