Commonwealth v. Ventura

• Citation: 1 N.E.2d 30,294 Mass. 113
• Parties: COMMONWEALTH v. VENTURA et al.
• Decision Date: 01 April 1936
• Court: United States State Supreme Judicial Court of Massachusetts

294 Mass. 113

1 N.E.2d 30

COMMONWEALTH v. VENTURA et al.

Supreme Judicial Court of Massachusetts, Middlesex.

April 1, 1936

Julio Venture and others were convicted of murder in the second degree, and they appeal.

Affirmed.

Direction that jurors retire to jury room as they were accepted and sworn and remain there until remaining jurors were accepted and sworn did not deprive defendants of their privilege of confrontation. U.S.C.A. Const.Amend. 14.

Appeal from Superior Court, Middlesex County; Brown, Judge.

W. R Scharton, of Boston, for appellants.

E. J Bushell, Asst. Dist. Atty., of Malden, for the Commonwealth.

RUGG Chief Justice.

These four defendants were indicted jointly with one Angelo Cadero (as to whom the indictment stands continued) for the murder on October 3, 1934, of one Luigi Girgo. The indictment subsequently was amended without objection by adding after the name Luigi Girgo the words ‘ otherwise called Luigi Galetta.’ G.L.(Ter.Ed.) c. 277, § 35A; Commonwealth v. Gedzium, 259 Mass. 453, 458, 459, 460, 156 N.E. 890; Commonwealth v. Snow, 269 Mass. 598, 604, 605, 606, 169 N.E. 542, 68 A.L.R. 920; Commonwealth v. McKnight, 283 Mass. 35, 186 N.E. 42. A verdict of guilty of murder in the second degree was returned against these four defendants. The case comes before us by appeal with a concise summary of record, transcript of evidence and assignment of errors in accordance with G.L.(Ter.Ed.) c. 278, §§ 33A-33G.

The first assignment of error relates to the denial of motions for mistrial filed by the defendants. The circumstances touching this matter are these: The trial and the impanelling of the jury began in the presence of the defendants and all counsel on January 21, 1935. After the selection of the first juror, the presiding judge said: ‘ Mr. Officer, as fast as these jurors are accepted, until the impanelling is completed they may retire to the jury room while the examination of the succeeding jurors is in progress.’ Thus the jurors were in a protected place and under the general supervision of the trial judge. Officers were sworn to take charge of the jury as selected. The impanelling proceeded for the remainder of that day. Just before the noon recess on January 22, 1935, the impanelling of the jury was completed, the jury were polled, the defendants responded to the calling of their names, the foreman of the jury was appointed by the court, and five officers were sworn to take charge of the jury. When the court came in after the noon recess, the motions for mistrial were presented. The ground alleged in each motion was the ‘ the Court erred in permitting each juror after being qualified and duly sworn to pass upon the issues in the above case, to be removed from the Court room where the defendants, charged with a capital crime were to be tried, into some other room of the court house, until all the twelve jurors were so qualified; and that thereafter the Court assembled said jury in the court room where defendants were to be tried, when for the first time they were polled in a body by order of the Court. All of which procedure was prejudicial to the defendants, and in violation of their constitutional rights.’

The trial judge in denying the motions stated (1) that they were filed too late and that objection to the procedure should have been made on the first or successive retirements from the court room to the jury room, and (2) that the reason for adoption of the procedure was because of his experience in another murder trial in the examination of jurors in the presence of those already selected.

The procedure as to this point is not prescribed by a statute. The general provisions as to the impanelling of jurors are in G.L.(Ter.Ed.) c. 234, §§ 25 to 32. By section 26 it is required that if ‘ a jury is to be impanelled for the trial of a capital case, the clerk of the court,’ after causing the name of each juror summoned therein to be written on a separate ballot, folded in a specified way and placed in a special box, ‘ shall then in open court draw the ballots in succession from said box, and the twelve persons whose names are upon the ballots first drawn and who are not excused or otherwise set aside, shall be sworn as the jury for the trial of the case.’ No rule of court governs the procedure here assailed. It has been the practice for many years in capital trials under section 28 to call and examine each juror as his name is drawn from the box. If he is found indifferent and not disqualified and is not challenged, he is then sworn. G.L.(Ter.Ed.) c. 278, §§ 4, 5. This course is pursued with respect to each juror until twelve jurors found to be qualified and not challenged are sworn. It was assumed at the argument that it has been the practice also that, after being sworn, each juror has been seated in the portion of the court room reserved for the jurors during the trial and the hearing of evidence. The precise place where the jurors as they are accepted and sworn one by one shall wait while the remaining jurors are being accepted and sworn in like manner is a detail of court procedure. Such waiting jurors have no active duty at the time. They are not participating in the trial. The business before the court is the drawing and qualification of the remaining jurors. That is the matter then going forward which is of interest to the defendants and their counsel. The place or presence of jurors already sworn is of no moment to them. So long as these jurors are under the general supervision of the judge and the protection of the court, no public interest or private right is affected. There is no inflexible rule governing the subject. The public welfare and the protection of the defendants are conserved provided these jurors, while the court is in session, remain in a place appropriate to their position. The matter rests in sound judicial discretion. Watson v. Walker, 33 N.H. 131, 142-145; Walker v. Kennison, 34 N.H. 257, 260; Commonwealth v. Dascalakis, 246 Mass. 12, 30, 31, 140 N.E. 470. This is illustrated by the practice which has prevailed respecting the challenges of jurors. In Commonwealth v. Knapp, 9 Pick. 496, 498,20 Am.Dec. 491, tried in 1830, a juror after making answers to preliminary questions was challenged by the prisoner. Upon objection that challenge in such circumstance was too late, the court ruled that a peremptory challenge might be made at that time. In Commonwealth v. Rogers, 7 Metc. 500,41 Am.Dec. 458, tried in 1844, the court decided that, notwithstanding the Knapp's Case, the right of peremptory challenge, if exercised at all, must be exercised in the first instance before the juror should be interrogated as to his bias or opinions. In Commonwealth v. Webster, 5 Cush. 295, 297, 52 Am.Dec. 711, tried in 1850, the court decided, in ruling upon a motion presented by counsel for the defendant, that as part of the usual course pursued, if the prisoner intended to challenge peremptorily, he must exercise that right before the jurors were interrogated as to their bias or opinions. So far as we are aware this practice continued until the enactment of St.1873, c. 317, § 1, now embodied in G.L.(Ter.Ed.) c. 234, § 29, to the effect that the right to challenge peremptorily any person called as a juror may be exercised after it has been determined that such person stands indifferent. It was said by the court speaking through Chief Justice Knowlton in Commonwealth v. White, 208 Mass. 202, at page 207, 94 N.E. 391, 393:‘ In cases where the parties think the right very important, and usually in trials for murder, a direction is given by the court, defining the order and manner of making the challenges. In the absence of such a direction, or of conduct plainly indicating a waiver, the right of both parties continues until the jurors are sworn.’ Thus the practice has fluctuated touching a more important matter than the place for waiting jurors to sit. Respecting a closely allied procedural point, it was said in Commonwealth v. Phelps, 209 Mass. 396, 415, 95 N.E. 868, 875, Ann.Cas.1912B, 566:‘ We know of no case in this commonwealth or elsewhere in which it is held that the defendant in a capital case has a right to have the jurors who have been sworn and impaneled kept together during a recess taken by the court before the impaneling of the jury is completed. For cases to the contrary, see Tooel v. Commonwealth, 11 Leigh (Va.) 714; Epes' Case, 5 Grat. (Va.) 676; State v. Burns, 33 Mo. 483.’ See, also, 1 Burr's Trial, 382.

The personal presence of the defendants at the trial was essential. Commonwealth v. McCarthy, 163 Mass. 458, 40 N.E. 766; Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011; G.L.(Ter.Ed.) c. 278, § 6. There was no infringement of that right in the case at bar. The defendants were present at all times. Every requirement of the statute was scrupulously observed in the drawing and impanelling of the jurors.

The defendants offer no argument or suggestion that in fact any harm came by the direction of the trial judge. No interest of the defendants has been endangered. Their right to a fair and impartial trial has not been affected in any degree. The precise place where jurors awaiting the completion of the panel and having no instant duty shall sit is no essential part of trial by jury. The change of court procedure here assailed has not impaired in any particular the right of the defendants to trial by jury as guaranteed by the Constitution and laws of this commonwealth. Commonwealth v. Gallo, 275 Mass. 320, 326, 175 N.E. 718, 79 A.L.R. 1380; Commonwealth v. Demboski, 283 Mass. 315, 320, 186 N.E. 589.

The defendants argue that their rights under the due process clause of the Fourteenth Amendment to the Constitution of the United States have been...