Commonwealth v. Kozlowsky

• Decision Date: 23 May 1921
• Citation: 238 Mass. 379,131 N.E. 207
• Parties: COMMONWEALTH v. KOZLOWSKY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 379

131 N.E. 207

COMMONWEALTH

v.KOZLOWSKY.

Supreme Judicial Court of Massachusetts, Middlesex.

May 23, 1921.

Exceptions from Superior Criminal Court, Middlesex County; Robert F. Raymond, Judge.

John Kozlowsky was convicted of attempting to steal an automobile, and he brings exceptions. Exceptions overruled.

Defendant was tried on two indictments and convicted on one, the material allegations of which are quoted in the opinion. He filed a plea of abatement and asked a jury trial on such plea. The court denied a jury trial and overruled the plea. Defendant thereupon pleaded not guilty, and moved for a bill of particulars, which was filed. A motion for further particulars was denied. A motion to quash was then filed and denied. On a jury trial defendant was found guilty.J. Weston Allen, Atty. Gen., and Charles R. Cabot, Asst. Atty. Gen., for the Commonwealth.

J. Weston Allen, Atty. Gen., and Edwin H. Abbot, Jr., Asst. Atty. Gen., for the Commonwealth on plea in abatement.

Clarence W. Rowley, of Boston, for defendant.

Joseph C. Pelletier, Dist. Atty., of Boston, pro se.

RUGG, C. J.

The defendant was tried in the superior court upon two indictments. In one it was charged that he conspired with others to steal automobile tires. Since he was acquitted upon that indictment, the numerous exceptions saved in reference to it need not be considered. In the other indictment, it was charged that the defendant ‘did attempt to steal one automobile and in such attempt did enter said automobile and endeavor to start it, but did fail in the perpetration of said attempted offense and was intercepted and prevented in the execution of said attempted offense.’

Upon motion by the defendant, a bill of particulars was filed charging that the defendant either alone or with other unauthorized persons attempted, in front of 20 Prescott street, Cambridge, to start an automobile of specified make and number, of a value in excess of $2,000, not the property of the defendant or any of the other persons present, but belonging to Kingsbury Brown. A motion for further particulars was denied.

The indictment and the bill of particulars furnished to the defendant adequate information concerning the nature of the crime with which he was charged. Commonwealth v. Wakelin, 230 Mass. 567, 571, 120 N. E. 209.

The defendant thereafter filed a motion to quash because of alleged defects in the indictment. This motion rightly was overruled. The indictment as originally framed did not follow the statutory form set out in the schedule of forms annexed to R. L. c. 218, at page 1846, now G. L. c. 277, at page 2418, in that there was no allegation that the automobile was ‘the property of another’ or the property of a person named. It is provided by R. L. c. 218, § 25, now G. L. c. 277, § 25, that if an indictment for a crime which involves the attempted commission of an injury to property, describes the property with sufficient certainty, the name of the owner need not be alleged. The word ‘steal’ as used in an indictment has, under the definition given in R. L. c. 218, § 38, now G. L. c. 277, § 39, become a term of art and includes the criminal taking of personal property of another with intent to deprive the owner permanently of the use of it. The words of the indictment at bar, namely, ‘did attempt to steal one automobile’ in brief and simple form express the meaning that the automobile was not the property of the defendant, but was the property of some third person whose name was not stated. Commonwealth v. Farmer, 218 Mass. 507, 509, 106 N. E. 150. A bill of particulars setting out adequate details is required as matter of right where as in the case at bar the indictment alone did not sufficiently inform the defendant. Commonwealth v. King, 202 Mass. 379, 88 N. E. 454. The description of the attempt was sufficiently detailed. Com. v. Peaslee, 177 Mass. 267, 59 N. E. 55.

It is not necessary to decide whether, if the motion to quash had been filed first and all rights under it seasonably saved, the indictment could have been held sufficient. See Commonwealth v. McDonald, 5 Cush. 365. The defendant, by first filing his motion for a bill of particulars, had received in fullness of detail all the requisite information which the indictment failed to give. Commonwealth v. Sinclair, 195 Mass. 100, 80 N. E. 799,11 Ann. Cas. 217. The constitutionality of the criminal pleading act has been upheld so many times it is no longer open to question.

[8] The defendant filed a plea in abatement in substance setting out that Henry F. Hurlburt, Esq., having previously questioned and examined the defendant and, not being the district attorney or his assistant nor otherwise authorized to be present, was with the grand jury while it was hearing and passing upon the matter of the indictment and claimed the right of trial by jury upon the issues of fact thereby raised. A discussion ensued between the judge, the assistant district attorney, the attorney for the defendant, and Mr. Hurlburt, during which a statement of fact was made by the latter. It is manifest from the record that this statement was accepted as true in every particular save only that his admitted presence with the grand jury was due to his appointment as special Assistant Attorney General. The attorney for the defendant refused to admit this appointment, whereupon a record attested by the executive secretary and certified by the secretary of the commonwealth under the great seal of the commonwealth, as provided in R. L. c. 175, § 74, now G. L. c. 233, § 76, was produced to the effect that Mr. Hurlburt ‘appeared in the council chamber and was duly sworn in as a special Assistant Attorney General,’ this being ‘a true copy of an item appearing in the minutes of the executive council under date of October 20, 1920.’ The claim of trial by jury upon the plea in abatement then was reiterated by counsel for defendant, who contended that the authority of Mr. Hurlburt in that regard was a question of fact. The judge stated that no jury trial would be allowed concerning facts admitted. The attorney for defendant did not further point out any question of fact which he contended was open to be decided by a jury, nor indicate any fact in controversy regarding the certificate or the plea in abatement. No question of fact was raised under these circumstances. The Attorney General was authorized by R. L. c. 7, § 9, now G. L. c. 12, § 2, to ‘appoint such assistants as the duties of the office may require’ and to employ additional legal assistance with the approval of the Governor and council. The entry of the taking of an oath by Mr. Hurlburt as special Assistant Attorney General, upon the records of the executive council in view of these statutes, imported under the circumstances here disclosed as an established fact, that in truth he held such office by adequate appointment under due authority of law. The defendant made no suggestion in any way impugning the accuracy, the pertinency, or the entire reliability of this record. There was no intimation of the existence of anything outside the record in any particular affecting its verity. There was nothing open to doubt left to be found by a tribunal trying the facts. The only question presented was one of law and not of fact. The defendant was not entitled to a trial by jury upon the plea in abatement under these circumstances. Dean v. Boston Elevated Railway, 217 Mass. 495, 105 N. E. 616.

[9] There was no necessity for a replication by the commonwealth to the plea in abatement. The practice in this respect on the criminal side of the court has become in large part assimilated to that prevailing on the civil side of the court, where no replication is required. See Comstock v. Livingston, 210 Mass. 581, 97 N. E. 106. In the absence of express admission, the matters stated in the plea in abatement were at once in issue. There was no admission, by pleading, failure to plead, or otherwise, that Mr. Hurlburt was not authorized to be present at the deliberation by the grand jury.

The question is raised whether under our Constitution and laws the Attorney General or a special assistant appointed for that purpose may be present in his official capacity during the deliberations of the grand jury.

The office of Attorney General is of considerable antiquity. Its early history and growth in England are traced in an article by Mr. Holdsworth, the learned historian of English law, in 13 Ill. Law Rev. 602, wherein its development is shown to have been essentially completed before the main migration of our ancestors to this country.

[10] The first appointment of an Attorney General in Massachusetts, so far as we are aware, was of Anthony Checkley on April 29, 1680 (see Council Record 1680, Court files, Suffolk County, No. 1857) six years earlier than the appointment, in or about July, 1686, of Benjamin Bullivant, frequently mentioned as the first Attorney General. Proceedings of Massachusetts Historical Society, June, 1895, vol. 10, Second Series, page 285 et seq.; vol. 13, second series, page 261; Washburn's Judicial History of Mass. 87; 12 Law Rep. (N. S.) [238 Mass. 386]43. The office was recognized as already in existence by Prov. Laws 1693–94, c. 3, § 12. When established it became endowed with the powers and duties appertaining to it at common law, so far as pertinent to the needs of the colony and province. It became one of the institutions of the common law brought by the early settlers to these shores, and its functions constituted a part of that body of common law generally recognized as a part of our jurisprudence. Crocker v. Justices of the Superior Court, 208 Mass. 162, 166, 94 N. E. 369,21 Ann. Cas. 1061. The powers and duties of the office appear to have rested largely upon the common law and the needs of the province as manifested in the practical administration of the office until the adoption of the Constitution with little of statutory regulation or...