Commonwealth v. Sacco

• Decision Date: 12 May 1926
• Parties: COMMONWEALTH v. SACCO et al. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 369

151 N.E. 839

COMMONWEALTH

v.SACCO et al. (two cases).

Supreme Judicial Court of Massachusetts, Norfolk.

May 12, 1926.

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

Nicola Sacco and another were convicted of murder in first degree. On defendants' exceptions during trial and exceptions to denial of various motions for new trials. Exceptions overruled.D. P. Ranney, Asst. Dist. Atty., of Boston, W. M. Wilbar, Dist. Atty., of Brockton, and W. P. Kelley, Asst. Dist. Atty., of Boston, for the Commonwealth.

W. G. Thompson, R. Spring and G. E. Mears, all of Boston, and R. H. Wiswall, of Salem, for defendants.

BRALEY, J.

A company of shoe manufacturers, described in the record as Slater & Morrill, Inc., was, on April 15, 1920, doing business in that part of the town of Braintree in the county of Norfolk in this Commonwealth known as South Braintree. The paymaster of the company, Frederick A. Parmenter, accompanied by a guard, Alessandro Beradelli, on that day left the upper office or factory of the company referred to as ‘Hampton House’ at about three o'clock in the afternoon, with the sum of $15,776.51 contained to two boxes, which sum was the amount of the payroll to be taken to the company's lower factory on Pearl Street where it was to be disbursed to their employees. In making the journey they crossed the tracks of the New York, New Haven & Hartford Railroad, passed easterly along Pearl Street, and, while walking opposite the factory of the Rice & Hutchins Company, which abutted on the southerly side of that street about two hundred and fifty feet from the lower factory, were attacked by two or more armed men who shot them down inflicting wounds from which death ensued. The boxes were seized by the robbers and placed in an automobile which was coming westerly through Pearl Street almost if not quite, simultaneously with the shooting, and which, after it had been boarded by the murderers, was driven rapidly away. It was undisputed that Parmenter and Beradelli were shot and killed while in charge of the payroll, in the day time, on a public highway, by some members of a group of men who seized the money and made their escape in an automobile. The Commonwealth claimed that the defendants, in concert of action with members of the group, being armed with dangerous weapons committed the robbery in the accomplishment of which they killed Parmenter and Beradelli. G. L. c. 265, §§ 1, 17; G. L. c. 274, §§ 1, 2. The grand jury, September 16, 1920, returned indictments charging the defendants as principals, and, each having been convicted of murder in the first degree, the cases are before us on exceptions taken at the trial and exceptions taken to the denial of various motions for new trials.

Before taking up the exceptions some preliminary questions must be decided.

[1] A part of the record designated as ‘Corrections of errors and omissions in the bill of exceptions allowed October 2, 1924, and printed, but not yet entered in the Supreme Judicial Court; and a statement of certain material circumstances occurring since the trial,’ contains this statement as to the sanity of the defendant Vanzetti as of the time the exceptions to the denial of the motions for new trials were presented and allowed:

‘Doubt has arisen in the mind of the Court and also of counsel for the Government and counsel for both defendants, whether, without an adjudication that the defendant Vanzetti is sane or has been restored to sanity, counsel have any right to act for him in the presentation of any of the supplemental bills for allowance, and whether the Court, although finding the bills otherwise proper for allowance, has any right to allow the same in favor of Vanzetti, and also whether said bills of exception can properly be printed and entered in the Supreme Judicial Court and argued therein in the absence of such adjudication. In the absence, so far as is known, of any explicit provision of law for submitting this question to the Supreme Judicial Court, the facts have been set out in this paper and are submitted to the Supreme Judicial Court under its general jurisdiction to regulate the administration of justice, for such action as to that court may seem just and in accordance with law.’

No question was raised as to the sanity of Vanzetti during the trial or when the principal bill of exceptions relating thereto was settled and allowed September 13, 1924, but on December 30, 1924, the state expert for insane criminals and the physician of the State Prison, signed and sent to a justice of the Superior Court a communication stating that——

‘Bartolomeo Vanzetti, sentenced August 16, 1920, from Plymouth to service from twelve to fifteen years for assault with a dangerous weapon with intent to rob, was examined by us to-day.’

They further state that after examination on October 22, 1924, and December 24, 1924, and from his appearance on December 30, 1924, ‘We believe he is insane and also consider him to be a dangerous person and recommend that he be transferred to the Bridgewater State Hospital.’ Prior to the filing of the report, an expert, employed in behalf of Vanzetti, confirmed their findings and concurred in their opinion, although Vanzetti himself had at times expressed an opinion that he was not insane and that his removal from the State Prison would not be justifiable. The court found Vanzetti to be insane, and on January 2, 1925, issued a warrant to the warden of the State Prison directing him to remove Vanzetti from the State Prison to the Bridgewater State Hospital and deliver him to the superintendent thereof. The warrant was executed and return duly made and pursuant thereto Vanzetti became an inmate of the said hospital January 2, 1925.

By G. L. c. 123, § 2, it is provided that, ‘The Commonwealth shall have the care, control and treatment of all insane * * * persons'; and by section 1, the words ‘Commissioner’ and ‘Department’ used in the statute shall, unless the context otherwise requires, mean respectively ‘commissioner of mental diseases' and ‘department of mental diseases.’ The sections under which Vanzetti was committed are as follows:

‘Sec. 102. The department shall designate two persons, experts in insanity, to examine prisoners in the state prison, the Massachusetts reformatory, the prison camp and hospital or the reformatory for women, alleged to be insane. If any such prisoner appears to be insane, the warden or superintendent shall notify one or both of said experts, who shall, with the physician of such penal institution, examine the prisoner and report the result of their investigation to the superior court of the county where such penal institution is situated or to the appropriate district court mentioned in the following section.’

‘Sec. 103. The superior court upon a report under the preceding section, if it considers the prisoner to be insane and his removal expedient, shall issue a warrant, directed to the warden or superintendent, authorizing him to cause the prisoner, if a male, to be removed to the Bridgewater State Hospital, and, if a female, to be removed to one of the state hospitals for the insane, there to be kept until, in the judgment of the superintendent and the trustees of the institution to which the prisoner has been committed, he should be returned to prison. * * * When the superintendent and trustees determine that the prisoner should be so returned, they shall so certify upon the said warrant, and notice, accompanied by a written statement regarding the mental condition of the prisoner, shall be given to the warden or superintendent of such penal institution, who shall thereupon cause the prisoner to be reconveyed thereto, there to remain pursuant to the original sentence, computing the time of his detention or confinement in the said hospital as part of the term of his imprisonment.’

The powers and duties of the trustees of the hospital were by St. 1919, c. 199, § 1, transferred to the director of prisons, and his powers and duties were by St. 1919, c. 350, pt. 3, §§ 82–84, [255 Mass. 410]86, vested in the head of the Department of Correction under the title ‘commissioner of correction.’ See G. L. c. 124. It follows that the order of the commissioner of correction and of the superintendent of the hospital, endorsed on the copy of the warrant, that ‘Bartolomeo Vanzetti ought to be returned to the Charlestown State Prison,’ with the written statement of the medical director of the hospital, that he believed Vanzetti to be ‘normal mentally’ was in accordance with the statute. The warrant of the court determined only that he was insane when the warrant was issued; and the order for his return showed that he had recovered. It must be assumed that, no further inquiry having been applied for, he was mentally competent to retain and instruct counsel to protect his legal rights then pending before the court. Commonwealth v. Spencer, 212 Mass. 438, 442, 443, 99 N. E. 266, Ann. Cas. 1913D, 552. No subsequent change in Vanzetti's mental condition having been suggested at the argument before us, the presumption of his sanity is controlling.

[2] It is generally contended by the Commonwealth that the various motions for new trials were filed too late and that the trial court had no jurisdiction to pass on them. By G. L. c. 278, § 29, the Superior Court at the sitting in which an indictment is tried or within one year thereafter upon motion in writing of the defendant may grant a new trial for any cause for which by law a new trial may be granted or if it appears to the court that justice has not been done, and upon such terms or conditions as the court shall order.

It having been decided in Commonwealth v. Rollins, 242 Mass. 427, 136 N. E. 360, that under this statute the Superior Court had no jurisdiction on May 5, 1920, to entertain a motion by the defendant for a new trial for murder on the ground of newly discovered evidence where a verdict of...