Commonwealth v. Venuti
| Decision Date | 27 December 1943 |
| Citation | 52 N.E.2d 392,315 Mass. 255 |
| Parties | COMMONWEALTH v. SALVATORE VENUTI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 6, 1943.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, & COX, JJ.
Homicide. Conspiracy.
Practice, Criminal Discretionary control of evidence, Charge to jury, New trial. Evidence, Photograph, Presumptions and burden of proof.
Evidence, that one of four defendants indicted for murder, in pursuance of a common felonious design prearranged by the four, entered a tenement; that, while there, the defendant, in carrying out that design, added to the force of numbers by his presence and guarded the door and another of the four committed a homicide in his presence; that he later assisted the others in disposing of the body of the victim and effacing evidences of the crime; and that he then became a fugitive from justice, warranted a verdict of guilty of murder in the second degree: the original felonious design supplied the malice aforethought necessary to conviction.
Exclusion, at the trial of an indictment charging murder, of questions, asked in cross-examination of a medical examiner testifying for the
Commonwealth, as to what was his purpose in the performance of certain of his duties, where any answer he might have given would not have been helpful to the jury, was not an improper exercise of discretion by the trial judge.
In the circumstances, photographs of the mouth of the victim of a homicide were competent at the trial of an indictment for his murder.
An exception merely to the "limited suggestion on the presumption of innocence" in an instruction at the beginning of a charge to the jury trying an indictment for murder, that "the law presumes . . . [the defendant] to be innocent until his guilt is proved beyond a reasonable doubt," was overruled where full and accurate instructions were given as to the burden of proof and reasonable doubt and the jury were told that, although they could draw inferences, they could not decide upon guesswork and conjecture.
No error appeared at the trial of an indictment for murder, in the trial judge's reading to the jury excerpts from the evidence or in his references to the evidence in his charge.
It was proper for a judge presiding at the trial of an indictment for murder to recall the jury and give further instructions in the absence of counsel for the defendant.
There was no abuse of discretion and no error in the denial of a motion for a new trial of an indictment for murder based on contentions that were or might have been raised at the trial.
INDICTMENT for murder, found and returned on December 9, 1941. The case was tried before Donahue, J.
J. M. Boyle, for the defendant.
F. T. Doyle, Assistant District Attorney, (John J.
Sullivan, Assistant District Attorney with him,) for the Commonwealth.
The defendant Venuti has been convicted and sentenced for the murder in the second degree of Antonio Pomo on November 15 1941. Venuti was indicted jointly with one Semenza, one Cortese, and one De Marco; but Cortese was not apprehended, Semenza and De Marco pleaded guilty to manslaughter, and Venuti, hereinafter called the defendant, was tried alone.
The evidence most favorable to the Commonwealth, as developed at the trial, was substantially this: The four original defendants were friends or acquaintances and were accustomed to meet each other in and about a cafe on Hanover Street in Boston. In the evening of November 15 they met at the cafe and conversed and drank there. As they were leaving the cafe, Cortese said to the defendant, "Come on, Zip, what are you afraid of?" The four then walked to a tenement occupied by one Penta on Henchman Street. Penta and the murdered Pomo were very close friends, and the defendant knew them both. Both were in the tenement at the time. When the door was opened in response to a knock, Cortese, De Marco, Semenza, and the defendant entered. "They" said, "All right, stand back," and pushed Penta and Pomo back toward a table. De Marco said to Penta, "How much money have you got?" The defendant closed and locked the door and stayed near it. De Marco slapped Penta and "grabbed" $30 out of his pocket. Without saying anything, Cortese shot Pomo four times with a revolver handed to him then and there by Semenza. Pomo said, "You got me." Cortese also threatened Penta with the revolver. "They," apparently meaning Cortese, De Marco, Semenza and the defendant, said, "Come on," and all went out, including Penta. They walked about the streets for some minutes, and Cortese disappeared. There was evidence, which the jury might or might not have believed, that, on the street, De Marco returned $10 of the $30 to Penta, and also that he returned the whole of it. At one time, while on the street, the defendant, as he himself testified, found himself alone in front of a barber shop and had "an opportunity to leave." But the defendant, as well as De Marco, Semenza and Penta, returned to the tenement. De Marco said, "I wonder if he is dead," and then stabbed Pomo, who was lying on the floor, many times with a knife about the head and neck and through the heart. Death was caused by bullet wounds and other injuries, but "while the man was alive, there was stabbing." Semenza wrapped the body in sheets and a blanket. Semenza, De Marco, the defendant, and Penta carried it to a nearby wharf and threw it in the water of the harbor. The defendant helped to carry the body. All four then again returned to Penta's tenement and cleaned up the blood. The defendant assisted in the cleaning. After the murder the defendant did not return to his home and could not be found in his usual haunts. When, later, he gave himself up and was asked by the police whether he had seen Pomo since he (the defendant) had been "out of Concord," he answered, "Not that I can say," and when asked whether he had seen Pomo in restaurants, he answered, "I seen him just Hello, that is all."
The foregoing narrative of the killing finds ample support in the evidence, although there was much conflict as to further details which need not be recited here, including a conflict as to whether Cortese and Pomo exchanged vile epithets immediately before the shooting. The defendant's testimony in his own behalf was contradictory at several points and could not all have been true. Most of the more important evidence, except that from the medical examiner, but including that from the defendant, comes from persons who, by their own admissions on the stand, were implicated at least to the extent of having been present in the room at the killing, having returned there and having gone to the wharf with the body, and having again returned to the room after that. There is discernible in the testimony of these witnesses some tendency to minimize their respective parts in the affair. At any rate, it seems plain that the full story has not been told.
1. The defendant's motion for the direction of a verdict of not guilty was rightly denied. He contends that he could not be found guilty of murder, since there was no evidence that he did any shooting or stabbing and, as he says, no evidence that he joined with others in any common plan or design to cause the death of Pomo, or to commit any felony. But without adverting again to the details of the testimony, we think there was ample proof that the defendant, in company with Cortese, De Marco, and Semenza, entered the tenement of Penta in pursuance of a common felonious design or conspiracy, prearranged among the four, and that, while there, the defendant assisted in carrying out that design by adding to the force of numbers through his presence and by guarding the door, and that later, in continued participation with the others, he assisted them in disposing of the body and in effacing the evidences of the crime and thereafter himself became a fugitive from justice. Whether the original felonious design included homicide or went no further than robbery, it supplied the malice aforethought necessary, if homicide was committed in carrying out the design, as the jury could find it was, to render all who actually participated in carrying it out guilty of murder. Commonwealth v. Campbell, 7 Allen, 541, 543-547. Commonwealth v. Pemberton, 118 Mass. 36 . Commonwealth v. Madeiros, 255 Mass. 304 , 315. Commonwealth v. Devereaux, 256 Mass. 387 , 392, 394, 395.
2. In the cross-examination by the defendant of the medical examiner the judge excluded the questions whether the witness was "working as a criminologist" and whether what he did was "to influence the district attorney to allow . [him] to perform a second autopsy on this man for the purpose of unearthing evidence to show where the man lay, and where he drew his last breath." The exclusion was clearly within the discretion of the judge. Answers to such questions as these, whether in the affirmative or in the negative, would not have been helpful. The manner in which the questions were asked, which of course cannot be reproduced in the record, may have been such as to indicate an attempt to convince the jury that conduct of the medical examiner which was in fact perfectly proper in the performance of his duty was somehow reprehensible. Commonwealth v. Russ, 232 Mass. 58 , 79. Commonwealth v. Corcoran, 252 Mass. 465, 486. Commonwealth v....
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