Commonwealth v. Sacco

• Decision Date: 04 April 1927
• Citation: 156 N.E. 57,259 Mass. 128
• Parties: COMMONWEALTH v. SACCO et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 128

156 N.E. 57

COMMONWEALTH

v.SACCO et al.

Supreme Judicial Court of Massachusetts, Norfolk.

April 4, 1927.

Exceptions from Superior Criminal Court, Norfolk County; Webster Thayer, Judge.

Nicola Sacco and another were convicted of murder in the first degree. On defendants' exceptions to order denying a motion for new trial. Exceptions overruled.

See, also, 151 N. E. 839.

1. Criminal law k1158(1)-On motion for new trial, findings of trial judge on matters of fact relied on are final.

On motion for new trial, findings of trial judge that no reliance could be placed on the alleged confession of third person to commission of murder charged, that truth thereof was not substantiated, and that other grounds were not made out, being on matters of fact, are final.

2. Criminal law k911, 1156(1)-Granting or denial of motion for new trial rests in discretion of trial judge, which will not be disturbed unless vitiated by errors or abuse.

Granting or denial of motion for new trial rests in trial judge's discretion, and his decision will not be disturbed unless it is vitiated by errors of law or abuse of discretion.

3. Criminal law k1088(11)-Right to complete record by signing paper on rulings on requests filed with decision was not taken away by filing of bill of exceptions.

Where decision denying motion for new trial was accompanied by unsigned paper entitied, Rulings on Defendant's Request for Rulings, trial judge's right to complete the record by signing rulings was not taken away by filing of defendants' bill of exceptions.

4. Criminal law k945(1)-Rule that it is not imperative to grant new trial though newly discovered evidence would justify different verdict applies to capital case.

Rule that it is not imperative that new trial be granted, even though evidence is newly discovered which if presented to a jury would justify a different verdict, applies even though the case be capital.

5. Criminal law k1134(6)-Even though there are errors in statement denying motion for new trial, decision must stand if valid grounds are stated as basis of decision.

Although there are errors of law in written statement accompanying order denying motion for new trial, if valid grounds on which decision can be sustained are stated as basis thereof, it must stand.

6. Criminal law k940-Trial judge's statement that alleged newly discovered evidence was hearsay held not error of law on which to found exception.

On motion for new trial for newly discovered evidence, trial judge's statement that affidavits of witnesses were not affirmative evidence of fact because they were purely hearsay held not an error of law on which to found exception.

7. Criminal law k964-Statement that movants for new trial must establish truth of material allegations of newly discovered evidence held not confusing, in view of statements on credibility.

On motion for new trial for newly discovered evidence, statement of trial judge in decision that law placed burden on defendants to establish by fair preponderance of evidence truth of material allegations held not confusing, when followed by statement that one factor was credibility of those furnishing newly discovered evidence.

8. Criminal law k959-Statement that court must find defendants established truthfulness of third person's confession to warrant new trial held not error, where determination on truthfulness was not decisive.

On motion for new trial for newly discovered evidence that third person had confessed to commission of murder charged, statement of trial court that it must find that defendants established by fair preponderance of evidence truthfulness of the confession held not error, in view of decision manifesting that court did not regard determination on truthfulness thereof as decisive.

9. Criminal law k826-Trial judge in discretion could refuse to accept request presented for first time after argument (superior court rule 1923, No. 44).

In view of superior court rule 1923, No. 44, trial judge is authorized in discretion to refuse to accept request presented for first time after arguments in motion for new trial were finished.

10. Criminal law k959-Trial judge on motion for new trial may rely on his own knowledge of what took place at trial.

Judge in acting on motion for new trial may use and rely on his own knowledge of what took place at trial before him.

11. Criminal law k959-Agreement of counsel on truth of occurrences at trial is not binding on trial judge, if not in accord with his knowledge.

No agreement of counsel on truth of occurrences at trial is binding on trial judge on motion for new trial, if not in accord with his knowledge, and refusal to be so bound is not abuse of discretion nor proof of prejudice.

12. Criminal law k417(15)-Confession made out of court by third party is not admissible.

In prosecution for crime, a confession made out of court by a third party is not admissible.

13. Criminal law k666(1)-Prosecuting officer need not call witness in whom he has no confidence, or whose testimony is contradictory to matter to be proved.

A prosecuting officer violates no canon of legal ethics in presenting evidence which shows guilt, while failing to call witnesses in whom he has no confidence or whose testimony contradicts what he is trying to prove.

14. Criminal law k394-Placing spies in jail or within accused's family is not illegal method of obtaining evidence.

Placing spies in cells adjoining that of accused or within his family is not illegal method of obtaining evidence.

15. Criminal law k1158(1)-Weight to be given evidence of resemblance between defendant and others was for judge on motion for new trial.

On motion for new trial for newly discovered evidence, in prosecution for murder committed during pay roll banditry, weight to be given testimony of alleged resemblance between third persons and defendant and chauffeur of bandit car was for trial judge.

6. Criminal law k633(1)-Changes of statute law, substituting single judge for larger number of judges in capital cases, have not changed law governing discretion.

Changes of statute law, substituting a single judge of the superior court for the larger number of judges formerly required to preside in capital trials, have not modified law governing duty, authority, or exercise of discretion of presiding magistrate.D. P. Ranney, of Boston, and W. W. Wilbar, Dist. Atty., of Brockton, and W. P. Kelley, Asst. Dist. Atty., of Boston, for Commonwealth.

W. G. Thompson and H. B. Ehrmann, both of Boston, for defendants.

WAIT, J.

This case is before us upon exceptions claimed to an order denying a motion for new trial. The motion is in these words:

‘Now come both defendants in the above-entitled case and jointly and severally move for a new trial therein by reason of the facts set out in the affidavits of William G. Thompson, Amleto Fabbri, Nicola Sacco, and James F. Weeks, filed herewith, and in further affidavits to be filed in support of this motion; and because it appears from the confession of Medeiros annexed to the affidavits filed herewith that these defendants did not commit the murder for which they have been tried and convicted, but that said murder was committed by said Medeiros and his associates, as stated by him.’

It is, in substance, a motion for new trial by reason of newly discovered evidence. The affidavits disclose that one Medeiros has confessed that he took part in the crime of which the defendants have been found guilty and that they did not; and set out numerous statements as of fact which it is contended so substantiate the story of Medeiros that in fairness to the defendants a new trial should be granted in order that their innocence may be made to appear. They contain, also, allegations, as of fact, from which it is argued that a conspiracy to secure either the conviction of the defendants of murder as charged by the indictment, or proof that they are dangerous radicals subject to deportation or punishment under the laws of the United States, between the Department of Justice of the United States and the prosecuting officers of the Southeastern District of Massachusetts, is shown to have existed which rendered their trial grossly unfair. They contain, further, allegations, as of fact, which it is contended establish that there was such suppression by the district attorney of important identification testimony, and such use of unreliable witnesses of identification, that a miscarriage of justice resulted.

The defendants were found guilty on July 14, 1921. The confession was made November 18, 1925. The dates of the disclosures in regard to the alleged conspiracy and the alleged suppression and misuse of evidence do not appear. This motion for new trial was filed May 25, 1926.

In November, 1925, Medeiros was awaiting the determination of exceptions claimed by him at a trial in which he was convicted of murder in the first degree. The presentation of the motion for new trial was delayed so that, if he secured a second trial, Medeiros might not be prejudiced by knowledgethat he asserted participation in another murder. He has been again convicted, and was under sentence of death when the motion was heard. No claim is made that the delay was wrongful.

[1] The judge who presided at the trial and who heard the motion has decided that no reliance can be placed upon the alleged confession; that its truth is not substantiated by other affidavits; that the allegations of conspiracy to convict, of improper suppression of evidence and of improper use of unreliable witnesses, are not made out. These decisions are of matters of fact. Upon them the judge's findings are final. Commonwealth v. Sacco (Mass.) 151 N. E. 839;Commonwealth v. Dascalakis, 246 Mass. 12, 32, 140 N. E. 470.

[2] The granting or the denial of a motion for a new trial rests in the judicial discretion of the trial judge (Commonwealth v. Devereaux [Mass.] 153 N. E. 881, and cases cited); and his decision will not be disturbed unless it is vitiated...