Commonwealth v. Lammi
| Decision Date | 30 October 1941 |
| Citation | 37 N.E.2d 250,310 Mass. 159 |
| Parties | COMMONWEALTH v. ARTHUR LAMMI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 22, 1941.
Present: FIELD, C.
J., QUA, DOLAN COX, & RONAN, JJ.
Pleading. Criminal Bill of particulars.
Practice, Criminal Sentence, Grand jury proceedings, Discretionary control of evidence, Requests, rulings and instructions, Confession, New trial. Evidence, Relevancy, State's evidence Presumptions and burden of proof, Accomplice, Confession. Witness, State's evidence, Competency, Direct examination, Cross-examination.
The defendant in an indictment is not entitled as of right to be given a bill of particulars literally complying with a motion for a specification of "each and every overt or criminal act alleged to have been committed by the defendant in commission of" the crime alleged in the indictment.
After the Commonwealth, in response to the allowance of a motion by the defendant in an indictment to require it to specify "each and every overt or criminal act alleged to have been committed by the defendant," had specified various acts on his part, followed by the statement, "In short participated in the entire program of the crime from its beginning to its end," it was not error to deny a motion by the defendant to strike such statement from the bill of particulars.
No error appeared in a refusal to sentence one of several defendants, who had pleaded guilty to a joint indictment, before allowing him to testify as a witness for the Commonwealth at the trial of the others.
It was within the discretion of the judge presiding at the trial of an indictment to allow the district attorney to ask a leading question in direct examination of a codefendant who had pleaded guilty and had been called as a witness for the Commonwealth.
No abuse of discretion was shown, at the trial of an indictment charging assault with intent to rob and robbery, in the exclusion of irrelevant questions as to bad checks, asked in cross-examination of a witness for the Commonwealth.
In the absence of extraordinary circumstances, a judge before whom an indictment is tried will not inquire whether incompetent evidence was heard by the grand jury.
There was no abuse of discretion at the trial of an indictment in the exclusion of evidence which, even if "corroborative to the defendant's testimony," related to matters remote from the issues being tried.
The admission, at the trial of an indictment, of evidence in rebuttal which might have been presented in the Commonwealth's case in chief, or was similar to evidence which had been so presented, showed no error.
Requests for rulings, presented at the close of the charge at the trial of an indictment without "special leave" to present them at that time, had no standing by reason of Rule 71 of the Superior Court (1932).
A conviction at a criminal trial may be founded on the uncorroborated testimony of an accomplice of the defendant.
No error affecting one of two defendants at a criminal trial would have been shown even if the judge, upon the other defendant's pleading guilty after the jury had retired, had not withdrawn from them a signed confession by the second defendant which had been admitted in evidence and had been read to them with express instructions that it was competent only against him and not against the first defendant.
No abuse of discretion nor error of law was shown in the denial of a motion for a new trial of an indictment based on newly discovered evidence which the trial judge might well have concluded did not materially change the case as developed at the trial.
INDICTMENT, found and returned on August 19, 1938. The case was tried before Burns, J.
J. A. Anderson, for the defendant. C. S. Barton, Assistant District Attorney, for the Commonwealth.
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, Sections 33A-33G Lammi, hereinafter called the defendant, has appealed under Section 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 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, Section 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, Section 40. Declaration of Rights, art. 12. 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 defence, 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. Commonwealth v. Bartolini, 299 Mass. 503 , 508-510, certiorari denied sub nomine Bartolini v. Massachusetts, 304 U.
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 Met. 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, Section 3A, fixes limits of time within which the district attorney shall move for...
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