Commonwealth v. Marsino

• Decision Date: 27 May 1925
• Citation: 252 Mass. 224,147 N.E. 859
• Parties: COMMONWEALTH v. MARSINO et al. (two cases). MARSINO v. COMMONWEALTH. SAME v. CLERK OF SUPERIOR COURT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 224

147 N.E. 859

COMMONWEALTH

v.MARSINO et al. (two cases).

MARSINO

v.COMMONWEALTH.

SAME

v.CLERK OF SUPERIOR COURT.

Supreme Judicial Court of Massachusetts, Worcester.

May 27, 1925.

Exceptions from Superior Court, Worcester County; E. T. Broadhurst, Judge.

Joseph B. Marsino and others were convicted of larceny of bonds, and conspiracy to steal bonds, of a national bank, and the named defendant excepts and files petitions in error in the Supreme Judicial Court and mandamus against the Clerk of Superior Court. Petitions in error and for mandamus dismissed, and exceptions overruled.

1. Criminal law k1004-Writ of error is original, independent action distinguishable from appeals and bills of exceptions.

A writ of error is an original, independent action, and in its origin and nature is distinguishable from appeals and bills of exceptions, which are continuations of original actions.

2. Criminal law k1008-Writ of error lies in criminal cases, notwithstanding remedy by appeal.

In criminal cases a writ of error lies, notwithstanding remedy by appeal.

3. Criminal law k1008-If criminal case proceeds according to course of common law, writ of error lies after final judgment in court of record.

If criminal case proceeds according to course of common law, as modified by G. L. c. 250, s 2, writ of error will lie after final judgment in court of record.

4. Criminal law k1134(7)-Judgment in criminal case may be re-examined by writ of error for error of law or fact.

In view of G. L. c. 250, s 9, judgment in criminal case may be re-examined and reversed or affirmed on writ of error for error of law or fact.

5. Criminal law k1023(10)-Final judgment cannot be entered in criminal case while exceptions pending and undecided.

Final judgment cannot be entered in criminal case while exceptions are pending and undecided, and hence writ of error must be dismissed, where exceptions are undetermined.

6. Criminal law k276-Issues of fact of plea to jurisdiction not required to be determined before hearing on indictments.

Issues of fact raised by plea to jurisdiction, being facts necessary to be determined against defendant on issue of guilt or innocence at trial on merits, held not required to be heard and determined before trial on indictments.

7. Criminal law k409-Issue as to whether defendant stole bonds from national bank and if he did so with aid of bank's president properly submitted.

Notwithstanding indictments against and plea of guilty of defendant and bank's president in federal court under Rev. St. U. S. s 5209, as amended Sept. 26, 1918 (U. S. Comp. St. Ann. Supp. 1919, s 9772), for misapplication of bonds of national bank, in prosecution under state indictments there was no error in submitting issues to jury whether defendant or bank's president stole the bonds, and whether, if defendant stole them, he did so with aid of bank's president; facts charged in federal indictment being taken as true, in view of the plea of guilty, only when facts of convictions of defendants become material.

8. Criminal law k95-Sole jurisdiction of larceny from national bank is in states.

Larceny from a national bank is not punishable under the federal laws, and sole jurisdiction of offense is in the states.

9. Conspiracy k37-Conspiracy to steal from national bank was not merged in consummated felony.

Conspiracy to steal from a national bank was not merged in the contemplated and consummated felony.Asa P. French, of Boston, for Marsino.

C. B. Rugg, Asst. Dist. Atty., of Worcester (E. W. Baker, Dist. Atty., of Fitchburg, E. G. Norman, Asst. Dist. Atty., of Worcester, on the brief), for the Commonwealth.

PIERCE, J.

The two cases above entitled Commonwealth v. Joseph B. Marsino are indictments returned by the grand jury for the county of Worcester on May 16, 1924. The first charges Joseph B. Marsino with the larceny of certain bonds belonging to the First National Bank of Warren, a national banking association duly established under the laws of the United States of America, and Frank L. Taylor and Abraham Goldman as accessories to the larceny before the fact. The second indictment charges Joseph B. Marsino, Frank K. Taylor, and Abraham Goldman with conspiracy to steal said bonds of the National Bank.

The third and fourth cases, entitled Joseph B. Marsino v. Commonwealth, are two petitions for writs of error filed in the Supreme Judicial Court on June 17, 1924, after the petitioner had appealed from the action of the court on his plea to the jurisdiction, and after he had perfected exceptions taken to all the questions of law set forth in the petitions for writs of error. The petitioner, in each petition, assigns as errors in the record of the process and judgment (1) ‘that the superior court erred in denying him an opportunity to have the issues of fact raised by his said plea to the jurisdiction determined before his arraignment’; (2) ‘that the superior court erred in overruling the petitioner's plea to the jurisdiction’; (3) ‘that the superior court erred in compelling the petitioner to go forward with the trial upon the general issue without first determining the questions of fact raised, by his plea to the jurisdiction’; and (4) ‘that the superior court erred in pronouncing judgment upon the verdict rendered against the petitioner at said trial (a) because the court had no jurisdiction of said cause; and (b) because the conspiracy charged against him was merged in the larceny for which he had previously been adjudged guilty and sentenced.’

The fifth case, entitled Joseph B. Marsino v. Clerk of Superior Court, is a petition for mandamus, filed January 10, 1925, against the clerk of the superior court of Worcester county, which seeks a direction to the clerk to omit from the record one of three bills of exceptions allowed by the court as constituting one record, but which was subsequently waived by the defendant.

At the hearing before the full bench the defendant stated that he waived the petition for the writ of error if the filing of such was incompatible with the prosecution of the exceptions saved by the defendant; that he waived the petition for mandamus; and waived any exception ‘taken in his behalf during the testimony or to the charge which, if valid, would result merely in a retrial in the state court.’ In this state of the record we shall consider first whether the petition for a writ of error is properly before this court, and if not, then such substantive questions of law as are saved by the bill of exceptions.

[1][2][3][4][5] A writ of error is an original, independent action and in its origin and nature is distinguishable from appeals and bills of exceptions, which are continuations of the original action. In criminal cases, as distinguished from civil actions, the writ lies notwithstanding there is a remedy by appeal. Cooke, Petitioner, 15 Pick. 234;Thayer v. Commonwealth, 12 Metc. 9;Savage v. Gulliver, 4 Mass. 171, 178;Perkins v. Bangs, 206 Mass. 408, 416, 92 N. E. 623. If the case proceeds according to the course of the common law as modified by practice and usage of the commonwealth (G. L. c. 250, § 2), such a writ will lie after a final judgment in a court of record. Cooke, Petitioner, supra. “A writ of errour.' This writ lyeth when a man is grieved by an error in the foundation, proceeding, judgment, or execution. * * * But without a judgment, or an award in nature of a judgment, no writ of error doth lie; for the words of the writ be, si judicium redditum sit.' Coke upon Littleton, p. 288, § 503. A judgment in a criminal case may be re-examined and reversed or affirmed, upon a writ of error, for any error in law or fact. G. L. c. 250, § 9. No final judgment can be entered in this case while the exceptions are pending and undecided. Bearse v. Mabie, 198 Mass. 451, 84 N. E. 1015;Wylie v. Blake & Knowles Steam Pump Works, 221 Mass. 489, 109 N. E. 396;Daly v. Kohn, 230 Ill. 436, 82 N. E. 828. It follows that the petition for the writ of error must be dismissed.

[6] Accepting as the measure and guide the terms of waiver above set forth, we put to one side the exceptions taken to the denial of the judge to submit to a jury such issues of fact as were raised by the defendants, which were saved during the trial and to the admission or rejection of testimony or to the charge of the judge, which, if valid, would result in an order for a new trial. The defendant's exceptions, taken to the refusal of the court to have the issues of fact raised by the plea to the jurisdiction heard and determined before putting him on trial to the indictments, if not included within the scope of the waiver, must be overruled. The basic facts asserted in the plea and in the affidavits in support of the plea were put in issue by the government without a formal demurrer, traverse or replication, and were facts which were necessary to be determined against the defendant on the issue of guilt or innocence at the trial on the merits. In such a situation the law does not require for the protection of the defendant that a jury should be impaneled to determine the facts raised on the plea, and if the issues be found against the defendant another jury shall be required to decide the identical issues of fact at the trial on the merits. Wright & Wade v. United States, 158 U. S. 232, 238, 15 S. Ct. 819,39 L. Ed. 936....