Commonwealth v. McKnight

• Citation: 195 N.E. 499,289 Mass. 530
• Parties: COMMONWEALTH v. McKNIGHT (five cases).
• Decision Date: 27 March 1935
• Court: United States State Supreme Judicial Court of Massachusetts

289 Mass. 530

195 N.E. 499

COMMONWEALTH v. McKNIGHT (five cases).

Supreme Judicial Court of Massachusetts, Middlesex.

March 27, 1935

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Exceptions from Superior Court, Middlesex County; Collins, Judge.

Edwin T. McKnight was convicted of conspiracy to bribe municipal officers, receiving fees as an officer in connection with business of a trust company, and larceny, at trial of indictments, and he brings exceptions.

Judgment in larceny indictment affirmed; exceptions in other cases overruled.

F. A. Crafts, Asst. Dist. Atty, of East Cambridge, for the commonwealth.

Edward M. Dangel, L. E. Sherry, and E. F. Connelly, all of Boston, for defendants.

RUGG Chief Justice.

These three records relate to five indictments against one defendant. The first was returned on October 13, 1932, and the others were returned on October 18, 1932. The first was in six counts and charged six separate larcenies of money. Verdicts in favor of the defendant were directed on counts 2, 4 and 6. The remaining counts respectively charge that the defendant did steal from Frankini Brothers Company Incorporated on June 21, 1929, $5,000, on July 18, 1929, $3,000, and on August 6, 1930, $8,000. The next three indictments are comprised in one bill of exceptions so far as concerns proceedings before verdicts, and in three bills of exceptions as to proceedings subsequent to the verdicts; each indictment charges that the defendant, within specified periods of time with two others unknown, did conspire to bribe municipal officers of the city of Medford in violation of G. L. (Ter. Ed.) c. 268, § 7. The fifth indictment, set forth in another bill of exceptions, charges in two counts, one specifying four thousand dollars on July 21, 1930, and the other two thousand dollars on October 15, 1930, that the defendant did receive a fee, commission, gift or other consideration in connection with a certain business transaction of a trust company of which he was an officer: these counts are based on G. L. (Ter. Ed.) c. 172, §§ 16, 17, 72, and charge misdemeanors. On April 25, 1933, verdicts of guilty were returned on all the counts in the several indictments submitted to the jury. On May 1, 1933, sentences were imposed as follows: On each of the three indictments for conspiracy, the defendant was sentenced to the house of correction for two years, the sentences to be served concurently; on the indictment for receiving fees as an officer in connection with the business of the trust company, he was sentenced for one year on each count, to be served concurrently with the sentences on the conspiracy indictments. On the larceny indictments the entry was made that the defendant, having been convicted of three distinct larcenies at the same sitting, was adjudged a common and notorious thief and was sentenced for a term to the State prison, the sentence to take effect after the expiration of the other sentences imposed. G. L. (Ter. Ed.) c. 266, § 40.

All the indictments were tried together. As already shown, they related to several distinct matters. Therefore, the trial of them together was not a merger into one proceeding. That hardly could be done as to indictments or prosecutions for crime. This method was pursued merely for convenience, each indictment continuing separate and distinct so far as concerns docket entries, procedure, verdicts, judgments and all other aspects save only the one of joint trial. Lumiansky v. Tessier, 213 Mass. 182, 188, 99 N.E. 1051, Ann.Cas. 1913E, 1049.

In the larceny case there is an appeal and assignment of errors by the defendant, but it does not relate to proceedings at the trial before the jury. It is stated in that record that it was ordered by the court that ‘ this case is subject to’ G. L. (Ter. Ed.) c. 278, §§ 33A-33G inclusive. That order was within the power of the trial judge under G. L. (Ter. Ed.) c. 278, § 31, because the several larcenies charged in this indictment were felonies under G. L. (Ter. Ed.) c. 266, § 30, each being in excess of $100 in amount. That order was never revoked or modified, although there is a stipulation signed by counsel and approved by the trial judge as to use in argument for certain purposes of the record in the conspiracy indictments. The bill of exceptions relating to the three indictments charging conspiracy to bribe a municipal officer states that it was ordered that the trials of all the above indictments proceed and that all of said ‘ indictments be subject to’ G. L. (Ter. Ed.) c. 278, §§ 33A-33G. That order can hardly be taken to mean that the trial was to proceed in accordance with the practice prescribed by those sections, because they apply only to charge of murder, manslaughter and other felonies. Each of these three indictments charges a conspiracy to commit a felony, which is only a misdemeanor, Commonwealth v. Stuart, 207 Mass. 563, 571, 93 N.E. 825,Commonwealth v. Marsino, 252 Mass. 224, 232, 147 N.E. 859; Fox v. Commonwealth, 264 Mass. 51, 53, 161 N.E. 803; People v. Tavormina, 257 N.Y. 84, 90, 91, 177 N.E. 317, 75 A.L.R. 1405. Therefore those indictments could not be tried in conformity to G. L. (Ter. Ed.) c. 278, §§ 33A-33G. Commonwealth v. McDonald, 264 Mass. 324, 334, 335, 162 N.E. 401. That order appears to have been disregarded. because a bill of exceptions in common form has been allowed and is before us. No question was reasonably raised on the record as to procedure touching those indictments. The filing of exceptions was proper practice and the order for trial subject to G. L. (Ter. Ed.) c. 278, §§ 33A-33G, must be taken to have been improvidently entered. Commonwealth v. Vallarelli, 273 Mass. 240, 245, 173 N.E. 582.

The only way in which the defendant could of right bring questions of law, saved at the trial of the indictment charging him with receiving a fee, commission, gift or other consideration in connection with the business of a trust company of which he was an officer, before this court for review was by exceptions. He did not within the specified time after verdict file a bill of exceptions. He did not secure an order for extension of time as to the filing of exceptions. He did not before the expiration of the time for filing exceptions, obtain an order that a single consolidated bill of exceptions be filed covering all the cases. The extension of time granted as to filing exceptions in the conspiracy cases had no effect upon the other cases. The single bill of exceptions covering those cases relates exclusively to matters occurring after verdict and sentence. The right of the defendant to a review by this court of exceptions taken before the verdict and during the trial of the indictment charging him with the several larcenies has been lost, because he did not file claim of appeal within twenty days after verdict in conformity to the requirements of G. L. (Ter. Ed.) c. 278, § 33B, and did not perfect his appeal as there directed. Several months later the defendant filed in each of these two cases a motion requesting the trial judge to consolidate these two cases with those cases relating to the conspiracy charges into a single report to the full court. This motion was denied in each case with the notation that the trial judge ruled that he had the power, but in the exercise of his discretion refused, to grant the motion.

In this there was no error. The procedure by G. L. (Ter. Ed.) c. 278, §§ 33A-33G inclusive, is clear. It has been explained in Commonwealth v. McDonald, 264 Mass. 324, 334, 335, 336, 162 N.E. 401. There is no room for misunderstanding as to the method to be pursued in order to preserve rights saved at a trial of a misdemeanor in the Superior Court. If the defendant had desired that all the trials should proceed without regard to G. L. (Ter. Ed.) c. 278, §§ 33A-33G, or that a single bill of exceptions be filed covering all the cases, or that all questions be embodied in a single report under G. L. (Ter. Ed.) c. 278, § 30, steps to one or another of those ends should have been taken before the expiration of the time to appeal or to file exceptions. Buchannan v. Meisner, 279 Mass. 457, 461, 462, 181 N.E. 742, and cases cited. Stanwood v. Adams Garage Inc., 281 Mass. 452, 183 N.E. 846; Flood v. Grinnell, 286 Mass. 214, 189 N.E. 833. This conclusion is not at variance with Barrell v. Globe Newspaper Co., 268 Mass. 99, 102, 167 N.E. 910, and cases there cited, as to the desirability of a single bill of exceptions covering several cases tried at the same time. There was no incompatibility in law in combining in one joint trial a felony under G. L. (Ter. Ed.) c. 278, §§ 33A-33G, and several misdemeanors charged in other indictment. Commonwealth v. Gallo, 275 Mass. 320, 175 N.E. 718, 79 A.L.R. 1380. There was no difference in the rules of evidence or of procedure applicable to the trials of the different indictments. The same law governs all of them. The only difference consists in the methods of obtaining review of alleged errors of law as to which exceptions have been saved. Those differences do not arise until after verdicts of guilty have been returned. No exception appears to have been saved to the joint trial.

There is nothing to indicated an abuse of discretion on the part of the trial judge in refusing to report the cases in which the defendant had failed to preserve his rights. Of course, the exercise of sound judicial discretion imports the invocation of reason, courage, impartiality and conscience to accomplish in a calm spirit a result in conformity to law and fair both to the public and to the defendant. Davis v. Boston Elevated Railway Co., 235 Mass. 482, 496, 497, 126 N.E 841; Universal Adjustment Corp. v. Midland Bank, Limited, 281 Mass....