Commonwealth v. Walsh

• Decision Date: 30 March 1926
• Citation: 255 Mass. 317,151 N.E. 300
• Parties: COMMONWEALTH v. WALSH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 317

151 N.E. 300

COMMONWEALTH

v.WALSH.

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1926.

Exceptions and Appeal from Superior Court, Suffolk County; W. P. Hall, Judge.

Elliott S. Walsh was convicted of perjury, and he excepts and appeals. Exceptions overruled, and appeal dismissed.Leon R. Eyges and Lewis Marks, both of Boston, for appellant.

Maurice Caro, Sp. Asst. Dist. Atty., of Boston, for the Commonwealth.

SANDERSON, J.

The defendant was tried on an indictment in three counts for perjury, alleging that the false testimony was given in hearings before a master. The perjury charged in the first count is, in substance, that the defendant testified that he had given certain moneys to Frances E. Walsh and had either deposited or caused to be deposited such moneys in certain banking institutions in the city of Boston on divers days between January 1, 1922, and January 2, 1924, specifically naming an account in the Old Colony Trust Company under designation of ‘Edith F. Booth, Special,’ an account in the Suffolk Savings Bank for Seamen and others under the name of ‘Edith F. Booth,’ and an account in the National Union Bank to the order of ‘Ethel S. Walsh, E. S. Walsh, Atty.’ The perjury charged in the second count is, in substance, that the defendant testified that, at divers times between January 1, 1922, and January 2, 1924, he had given Frances E. Walsh certain moneys to be deposited in bank accounts in Boston; that on October 10, 1923, he had given her $300 or more to make up a deposit of $1,067.86 in the Old Colony Trust Company in the account of ‘Edith F. Booth, Special’; and that the remainder was made up of a check therein described. The defendant was convicted on the second count and acquitted on the first and third.

The exceptions argued relate (1) to the overruling of a motion and an amended motion to quash the indictment; (2) to the order overruling a motion for a new trial; and (3) to the denial of the defendant's motion in arrest of judgment and motion to amend the motion in arrest of judgment. The defendant, being arraigned on February 10, 1925, pleaded not guilty to the indictment, and ten days were allowed to file pleas.

[2] On February 17, 1925, he filed a motion to quash the indictment, assigning as reasons that the four witnesses who appeared before the grand jury had no personal knowledge of the alleged perjury and their evidence was hearsay and incompetent, and that no competent evidence to prove perjury was presented to the grand jury. On March 9, 1925, the defendant filed a motion to amend his motion to quash by adding the allegation that the indictment was returned on unsworn testimony. The motion to quash was overruled March 5, 1925, and the motion to amend the motion to quash was denied. The defendant in addition to saving an exception claimed an appeal from this order. The defendant, instead of availing himself of the right reserved to him by the court to file pleas within ten days from the date of his plea of not guilty, filed a motion to quash. The plea of not guilty admitted the validity of the indictment, and so long as that plea stood it was not open to the defendant to attack its validity by motion. Commonwealth v. Wakelin, 120 N. E. 209, 230 Mass. 567, 570;Lebowitch, Petitioner, 126 N. E. 831, 235 Mass. 357;Commonwealth v. Leventhal, 128 N. E. 864, 236 Mass. 516. But if it be assumed that the motion to quash was in the nature of a plea and the question sought to be raised is open, there is no merit in the defendant's contention. The court will not inquire whether competent evidence was heard by the grand jury. Commonwealth v. Woodward, 32 N. E. 939, 157 Mass. 516,34 Am. St. Rep. 302;Commonwealth v. Hayden, 40 N. E. 846, 163 Mass. 453,28 L. R. A. 318, 47 Am. St. Rep. 468;Commonwealth v....