Commonwealth v. McDonald

• Citation: 264 Mass. 324,162 N.E. 401
• Parties: COMMONWEALTH v. McDONALD et al.
• Decision Date: 19 July 1928
• Court: United States State Supreme Judicial Court of Massachusetts

264 Mass. 324

162 N.E. 401

COMMONWEALTH

v.McDONALD et al.

Supreme Judicial Court of Massachusetts, Middlesex.

July 19, 1928.

Exceptions from Superior Criminal Court, Middlesex County; H. A. Dubuque, Judge.

Mathew McDonald and another were convicted of simple assault, and they file exceptions and appeal. Exceptions dismissed, and judgment affirmed.

1. Criminal law k1005-Trials for felonies, other than murder and manslaughter, need only be in accordance with new practice, when judge exercises discretionary authority to so order (St. 1926, c. 329, ss 1, 6 amending St. 1925, c. 279).

Under St. 1926, c. 329, ss 1, 6, extending provisions of St. 1925, c. 279, to proceedings or trial on indictment or complaint for any other felony by order of justice of superior court presiding at proceedings, trials in murder and manslaughter cases alone must imperatively be in accordance with laws provided by such chapter, and trials for other felonies shall be in accordance with new practice only when presiding judge exercises discretionary authority to order trial to be in accordance with such practice.

2. Criminal law k633(1)-Circumstance that defendants were found guilty of misdemeanor rather than felony charged in indictment makes no difference as to procedure.

Circumstance that according to verdict of jury defendants were found guilty of misdemeanor rather than of full felony as charged in indictment makes no difference as to procedure to be followed in trial, since it is the tiral and not the verdict that controls the procedure in such case.

3. Criminal law k1059(2)-Exception to entire charge and assignment of error based thereon are of no avail.

Exception to the entire charge, as being an argument upon the facts and assignment of error based thereon, are of no avail.

4. Criminal law k1048, 1129(1)-Exception not included in assignment of errors and assignment not based on exception are not properly presented to full court (St. 1925, c. 279, St. 1926, c. 329).

Exception not included in the assignment of errors and assignment of errors not based upon exception, as required by St. 1925, c. 279, and St. 1926, c. 329, cannot be treated as rightly presented to full court.

5. Criminal law k778(3)-Instruction as to presumption of innocence must be given, if seasonably called to judge's attention.

An instruction as to presumption of innocence in a criminal case must be given, if seasonably called to attention of judge.

6. Criminal law k913(1)-Every variance from strict letter of law does not warrant new trial.

It is not every variance from the strict letter of what the law may require, if invoked during the trial, which does injustice or which warrants new trial.

R. T. Bushnell, Dist. Atty., and R. S. McCabe, Asst. Dist. Atty., both of Boston, for the Commonwealth.

P. J. Delaney, of Boston, for defendants.

RUGG, C. J.

The defendants were tried upon an indictment which charged them with assault with intent to rob. The jury returned a verdict of guilty of simple assault as to each defendant. A bill of exceptions in ordinary form was allowed and has been prosecuted by the defendants. They also claimed an appeal founded upon exceptions, and seasonably filed assignments of errors alleged to have been committed by the trial judge during the trial; and this appeal with full transcript of the evidence and charge and exceptions saved during the same trial has also been prosecuted and the papers are before us. The defendants state in their brief that, in view of the verdict of the jury, they were in doubt as to the proper way to secure review of the errors of which they complain and have therefore presented both exceptions and appeal.

[1] Recent statutes make clear the correct procedure. By St. 1925, c. 279, §§ 1, 2, a new practice was established regulating ‘any proceedings or trial upon an indictment for murder or manslaughter,’ whereby ‘no bill of exceptions shall be entered or considered in the supreme judicial court in any such proceedings or trial,’ and whereby the evidence shall be taken by a stenographer, exceptions seasonably saved shall be numbered consecutively in the transcript of the evidence, and a defendant who desires review of alleged errors by this court must file a claim of appeal in writing and also an assignment of errors as to such exceptions as he relies upon within times specified. The case comes to the full court as thus prepared. By St. 1926, c. 329, §§ 1 and 6, the practice established by St. 1925, c. 279, as to ‘proceedings or trial upon an indictment for murder or manslaughter’ was extended to proceedings or trial ‘upon an indictment or complaint for any other felony by order of the justice of the superior court presiding at such proceedings or trial made subject to sections thirty-three A to thirty-three G, inclusive, shall be governed by said sections.’ As we interpret these statutes, they mean that trials in murder and manslaughter cases alone must imperatively be in accordance with the new practice, and that trials upon indictments or complaints for other felonies shall be in accordance with the new practice only in those instances where the presiding judge exercises the discretionary authority vested in him to order such trial to be in accordance with the new practice.

‘The concise summary of the record’ prepared by the clerk, St. 1925, c. 279, § 1, section 33C, as amended by St. 1926, c. 329, § 3, and ‘the transcript of the evidence’ fail to show an order by the presiding judge that the trial of this case should be under the new procedure. It appears, however, from a supplemental certificate of the clerk that, before the trial of this case, a general order was made by the presiding judge to the effect that ‘all felonies in this session be tried’ under G. L. c. 278, as amended by St. 1925, c. 279, and St. 1926, c. 329. This supplemental certificate is treated as an amendment of the record, and it is assumed that this order is before us and rightly was applicable to the case at bar. That assumption is in favor of the defendants because all the exceptions set forth in the bill of exceptions appear in the assignment of errors and there is also one assignment of error not set forth in the exceptions.

[2] The circumstance that, according to the verdict of the jury, the defendants were guilty of a lesser offense, which is a misdemeanor, rather than of the full felony as charged in the indictment, makes no difference with the procedure when the essential order has been made. The trial was upon the felony as charged in the indictment. It was within the province of the jury, if the evidence had led them to that conclusion, to have returned a verdict of guilty of the felony as charged. It is the trial and not the verdict which controls the procedure...