Commonwealth v. Vallarelli

• Decision Date: 26 November 1930
• Citation: 273 Mass. 240,173 N.E. 582
• Parties: COMMONWEALTH v. VALLARELLI et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 240

173 N.E. 582

COMMONWEALTH

v.VALLARELLI et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 26, 1930.

Proceeding by one Vallarelli and others in the Supreme Judicial Court to establish the truth of exceptions disallowed by the superior court.

Petition dismissed.

J. H. Backus, of Boston, for petitioner.

F. T. Doyle, Asst. Dist. Atty., of Boston, for the Commonwealth.

RUGG, C. J.

This is a petition to establish the truth of exceptions. The relevant facts either stated at the bar or disclosed on the face of the petition are these: Five defendants were tried together upon a joint indictment charging them with robbery and on March 8, 1929, verdicts were returned. The four petitioners were found guilty. A verdict of not guilty was returned against the fifth defendant. No exceptions appear to have been filed with respect to the trial. Each petitioner was sentenced to the state prison on March 13, 1929. The further allegations of the petition in substance are that on February 1, 1930, the four petitioners filed separate motions for a new trial, copies of which are annexed. These several motions identical in form, were based upon the contention that the defendant was entitled to a new trial as matter of law. The ground alleged was that, although belonging to the class of persons entitled to its benefits, he had been denied the rights secured by a governing statute, chapter 59 of the Acts of 1927, being the form then in force of the final amendment of section 100A, added to G. L. c. 123. On March 12, 1930, ‘supplementary motions' for a new trial were filed in behalf of the defendants. Copies of these are annexed to the petition; each is entitled ‘Motion for New Trial.’ One motion was filed in the names of the petitioners Vallarelli, Ventola and Tetula, wherein the ground was stated that it appeared from the report of the department of mental diseases that Polcarri, jointly indicted and tried with them, was of unsound mind and that therefore they had been deprived of a fair trial; another motion was filed by Vallarelli reciting the trial and his earlier motion for a new trial and setting out as a ground for new trial that if it should appear that any of the convicted defendants had been deprived of the benefits of said section 100A and that he had not been so deprived, nevertheless he had been denied a fair trial by being compelled to be associated in the trial with such other defendants and was entitled to a new trial. A motion the same in substance was filed by Ventola. A motion was filed by Angelo Polcarri through his attorney and next friend setting out that since his sentence a report of the department of mental diseases signed by two physicians appears of record in the case, of this tenor: ‘The prisoner states that he sees visions and hears imaginary voices. He has had syphilis. In our opinion he shows sufficient evidence of mental disease to require further observation under Section 100 at Bridgewater.’ This report was filed on March 13, 1929. Additional allegations of the petition are that hearing on all these several motions for new trial was had on June 18, 1930, when the defendants filed requests for rulings, copy of which is annexed to the petition, and that on July 7, 1930, the requests for rulings and the several motions were denied, the judge filing at the same time his findings and rulings, copy of which is annexed. Material parts of these findings are: That throughout the trial and subsequent proceedings the four defendants who are petitioners were represented by one counsel; that another counsel also appeared for the defendants Tetula and Ventola; that a different counsel appeared for the defendant who was acquitted; that after the trial ‘motions for new trials on the usual grounds' were made by those petitioners and were denied; that the defendants were sentenced on March 13, 1929; and that at a hearing on that day ‘for the first time it was brought to my attention that the defendants Polcarri, Vallarelli and Tetula had each previously been convicted of a felony. The fact was then mentioned by the probation officer and the District Attorney for its bearing on the sentence to be imposed. At no time previously, nor then, was any question raised by any defendant as to the possible right of the three previously convicted’ defendants to examination before trial under the present indictment, ‘as provided by Acts 1927, chapter 59, or as to the validity of trial of any defendant without such examination. On March 12, 1929, the chief probation officer for Suffolk County notified the clerk of the criminal section of this court in Suffolk that defendants Polcarri, Vallarelli and Tetula had previously been convicted of a felony. On the same day the clerk notified the department of mental diseases' that the same three defendants were under indictment for robbery and were in custody in the common jail in Boston. On March 13, 1929, the department of mental diseases filed with the clerk a separate report as to each defendant. ‘The reports on the mental condition of the defendants, Vallarelli, Ventola and Tetula were identical, and in these words: ‘In our opinion the prisoner is not suffering from any mental disease or defect which would affect his criminal responsibility.’' The report on Polcarri's mental condition was in the words set out in his motion for new trial filed on March 12, 1930, and already quoted. ‘Even if Vallarelli, Ventola and Tetula failed to disclose to their counsel the fact of their previous convictions, I find that neither the chief probation officer nor the clerk had any actual knowledge of it before March 12 [1929]. Neither the district attorney nor I had any notice of the fact until March 13, 1929, when it was mentioned for the purpose above stated. None of the defendants testified, but there was nothing about Polcarri's appearance in the court room to indicate that he is, or was mentally defective, if in fact he was. Since neither the probation officer nor the clerk had knowledge until after verdict that three of the defendants had previously been convicted of a felony, I rule that no rights of any defendant under Acts of 1927, chapter 59 were violated by putting him on his trial under the instant indictment. All the defendants were of full age before the crime was committed. The only reason suggested at the hearing on the motions for new trial why the three defendants who had previously been convicted of a felony were not examined under the statute is because they did not disclose to their counsel or to anybody the fact of their previous convictions. * * * Four motions for new trial, one in behalf of each of the defendants, filed February 1, 1930, were waived by counsel at the hearing on the motions filed March 12.’ The petitioners seasonably filed a bill of exceptions respecting the denial of these motions. Its first sentence is: ‘Be it remembered that the exceptions herein were taken at and apply to the trial of the above entitled indictment.’ The presiding judge returned to the clerk of courts the bill of exceptions on July 16, 1930, with a letter stating that he had not allowed it, ‘first, because the bill has apparently not been presented to the District Attorney for his approval, and secondly because it states in the opening sentence that the exceptions were taken at the trial. The exceptions were not taken at the trial but relate only to my orders and rulings on motions for new trial filed in February and March of this year. Furthermore at the hearing on said motions, I understood Mr. Backus to say that the first group of motions filed in February, 1930, were waived as those filed in March covered substantially the same ground. The exceptions saved are to be embodied in a proper bill, and are first those to my denying of motions for new trial filed in March, 1930, and secondly, those to my denial of requests for rulings presented by the defendant at the hearing on said motions.’ It is alleged in the petition that this letter is a disallowance of the bill of exceptions.

The petition also alleges that one July 17, 1930, the defendants filed a claim of appeal together with certain assignments of errors. Copies of these are annexed to the petition. No mention of this claim of appeal and assignment of errors is made in the copy of the bill of exceptions annexed to the petition. It is not alleged in the petition that the trial by order of a judge of the superior court was had under the provisions of sections 33A to 33G inclusive inserted in G. L. c. 278, by St. 1925, c. 279, § 1, and amended by St. 1926, c. 329, §§ 1 to 6 inclusive. It is provided by said section 33B that proceedings to which said sections are applicable shall include questions of law arising on motions for a new trial. Therefore, in the absence of any allegations to the effect that the cases were tried under said section 33A to 33G, it is assumed in favor of the petitioners that the filing of a bill of exceptions was proper procedure and that the provisions of G. L. c. 278, § 31, as finally amended by St. 1926, c. 329, § 6, and chapter 231, § 117, are applicable. See Commonwealth v. McDonald, 264 Mass. 324, 334, 162 N. E. 401.

This petition came on to be heard on the question whether a commissioner ought to be appointed. We understand the contention of the petitioners to be that the only question of fact to be determined on this petition is whether they waived the motions for new trial filed on February 1, 1930, and relied at the hearing solely on those filed on March...