Commonwealth v. Lammi

• Decision Date: 30 October 1941
• Citation: 37 N.E.2d 250,310 Mass. 159
• Parties: COMMONWEALTH v. LAMMI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 159

37 N.E.2d 250

COMMONWEALTH

v.LAMMI.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 30, 1941.

Arthur Lammi was convicted of assault with intent to rob and robbery at a trial conducted under provisions of G.L.(Ter.Ed.) c. 278, §§ 33A to 33C, and he appeals under § 33B.

Affirmed.Appeal from Superior Court (Criminal), Worcester County; Burns, judge.

Argued before FIELD, C. J., and QUA, DOLAN, COX, and RONAN, JJ.

J. A. Anderson, Jr., of Springfield, for defendant.

C. S. Barton, Asst. Dist. Atty., of Worcester, for commonwealth.

QUA, Justice.

The present defendant Lammi, and two others were jointly indicted for assault with intent to rob and robbery of a sum of money from Albert C. Bacon. After conviction at a trial conducted under the provisions of G.L.(Ter.Ed.) c. 278, § 33A to 33C. Lammi, hereinafter called the defendant, has appealed under § 33B.

1. There was no error in the refusal of the judge to strike out a portion of the Commonwealth's bill of particulars. Before trial the defendant had moved that the Commonwealth be ordered to specify in detail (1) the exact place and (2) time of the alleged assault and robbery, (3) the exact nature of the alleged assault, (4) which of the defendants ‘actually committed the alleged assault and robbery,’ and (5) ‘each and every overt or criminal act alleged to have been committed by the defendant, Arthur Lammi, in commission of the alleged assault, robbery and stealing of the money from the person of Albert C. Bacon.’ The judge had allowed the motion generally. The Commonwealth had specified in accordance with the items of the motion numbered 1 to 4 inclusive and in response to item 5 had stated this: ‘The defendant, Arthur Lammi, planned the robbery in conjunction with the defendants Mitchell and McManus; drove the other defendants to the scene of the robbery; identified the victim; stayed at the scene of the robbery until it was committed; drove the other defendants away from the scene of the robbery; concealed them in his house after the event; divided the stolen money and took his share of it; warned the other defendants to leave Worcester, drove them to a place where they could escape; destroyed the bag which contained the money that was stolen. In short participated in the entire program of the crime from its beginning to its end.’ The Commonwealth also stated its inability to furnish further specifications at that time. Thereupon the defendant moved to strike out the sentence reading, ‘In short participated in the entire program of the crime from its beginning to its end,’ on the ground that it did not comply with the defendant's motion for particulars, with the order of the court thereon, and with ‘the statute,’ presumably referring to G.L.(Ter.Ed.) c. 277, § 40. Denial of his motion to strike is assigned as error.

A short answer to the defendant's contention is that he was never entitled as of right to specifications in the full and exacting detail which an absolutely literal compliance with item 5 of his motion would require. He was entitled as of right to such particulars as might be necessary to give him and the court ‘reasonable knowledge of the nature and grounds of the crime charged,’ if ‘the charge would not be otherwise fully, plainly, substantially and formally set out.’ G.L.(Ter.Ed.) c. 277, § 40. Declaration of Rights, pt. 1, art. XII. He was not entitled to such minute particularity as would compel the Commonwealth to set forth what would amount to a summary of all the anticipated evidence implicating the defendant on pain of being unable to introduce any evidence of any single word or act of the defendant contributing to the crime different in any way from or in addition to that previously summarized. Such extreme specification is impractical, unnecessary to an adequate defense, and would tend to hamper and to prevent the conduct of the trial in a normal manner and to obstruct justice. The defendant acquired no vested right to such particularity as this by reason of the allowance of his original motion. When the judge heard the motion to strike he could take the view that the defendant had already had all the specification necessary for his protection and that justice did not require further action in pursuance of item 5 of the defendant's original motion. Commonwealth v. Howard, 205 Mass. 128, 143, 91 N.E. 397;Commonwealth v. Bartolini, 299 Mass. 503, 508, 510, 13 N.E.2d 382, certiorari denied sub nomine Bartolini v. Massachusetts, 304 U.S. 565, 58 S.Ct. 950, 82 L.Ed. 1531.

2. One Mitchell had been indicted jointly with the defendant and had pleaded guilty, apparently before the trial of the defendant and the third codefendant, one McManus, began. At the trial Mitchell was called as a witness by the district attorney. The defendant insisted that the judge sentence Mitchell before he should be allowed to testify, ‘so that he would be a more impartial witness,’ and assigns as error the judge's refusal to do so. The defendant concedes that under the decision in Commonwealth v. Smith, 12 Metc. 238, the codefendant ‘was a competent witness' after pleading guilty and before being sentenced, but argues that a codefendant who pleads guilty and ‘turns State's evidence’ ‘either has been promised or expects leniency in sentence’ and should therefore be sentenced before he testifies and not left ‘to curry favors from the prosecution.’ We are not aware of any such rule or practice in this Commonwealth. Sentence is commonly imposed upon motion of the district attorney and not upon that of a codefendant. G.L.(Ter.Ed.) c. 279, § 3A, fixes limits of time within which the district attorney shall move for sentence. The judge upon whom rests the responsibility for the sentence is not a part of ‘the prosecution.’ It is provided by G.L.(Ter.Ed.) c. 233, § 20, that ‘Any person of sufficient understanding, although a party, may testify in any proceeding, civil or criminal’ with certain exceptions not here material. In substance the point is decided against the defendant by Commonwealth v. Smith.

3. The judge did not exceed the bounds of his discretion in permitting a leading question to be asked in the direct examination of the witness Mitchell. Commonwealth v. Knight, 257 Mass. 421, 424, 154 N.E. 91;Commonwealth v. Simpson, 300 Mass. 45, 51, 13 N.E.2d 939, certiorari denied sub nomine Simpson v. Massachusetts, 304 U.S. 565, 58 S.Ct. 950, 82 L.Ed. 1531.

4. On the cross-examination by the defendant's attorney of the witness Mitchell the judge excluded questions as to whether police officers were ‘looking for’ him at a time when the witness had left Lynn after ‘a little misunderstanding * * * in regard to some checks,’ and also excluded a question as to the amount of the checks. The questions excluded were irrelevant to any issue on trial. The judge did not deny to the defendant's counsel a reasonable opportunity to test the credibility of the witness. The judge was not obliged to try out any issue in relation to bad checks at some time given by the witness but having nothing to do with the alleged robbery. Commonwealth v. Schaffner, 146 Mass. 512, 515, 516, 16 N.E. 280;Commonwealth v. Foster, 182 Mass. 276, 279, 65 N.E. 391;Commonwealth v. McDermott, 255 Mass. 575, 580, 152 N.E. 704.

5. The judge allowed the defendant ample opportunity to inquire on cross-examination into the motive of the witness Mitchell in confessing his own guilt and implicating the defendant and whether he hoped thereby to lighten his own sentence. There was no error in excluding two of the questions asked of Mitchell and one asked of Police Sergeant Pierce. It is unnecessary to discuss them in detail.

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