Golyer v. Commonwealth

• Citation: 51 N.E.2d 251,314 Mass. 626
• Parties: DE GOLYER v. COMMONWEALTH.
• Decision Date: 28 October 1943
• Court: United States State Supreme Judicial Court of Massachusetts

314 Mass. 626

51 N.E.2d 251

DE GOLYER

v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 28, 1943.

Reservation and Report from Supreme Judicial Court, Suffolk County.

Sidney B. DeGolyer pleaded guilty to five complaints charging him with sodomy, and he petitions for a writ of error to reverse the judgment sentencing him to state prison, and the case is brought to the Supreme Judicial Court upon the question of the constitutionality of G.L.(Ter.Ed.) c. 263, § 4a, as added by St.1934, c. 358, permitting sentence for a felony upon a complaint rather than an indictment, on reservation and report, without decision by the single justice.

Judgment affirmed.

Before FIELD, C. J., and LUMMUS, DOLAN, COX, and RONAN, JJ.

W. H. Lewis, of Boston, for petitioner.

F. E. Smith, Asst. Dist. Atty. of Boston, for the Commonwealth.

COX, Justice.

This is a petition for a writ of error to reverse the judgments in five cases in which the petitioner was sentenced to a term of not less than four nor more than five years in the State prison upon each of five complaints charging him with the crime of sodomy (a felony; G.L.[Ter.Ed.] c. 272, § 34; see G.L. [Ter.Ed.] c. 274, § 1), the sentences to run concurrently. The complaints were made to a District Court, and the petitioner was held for the Superior Court. G.L.(Ter.Ed.) c. 218, § 30, as amended by St.1941, c. 194, § 19. In the Superior Court the petitioner, being represented by counsel, waived indictment upon the charge alleged in each complaint and pleaded guilty, whereupon he was sentenced. This procedure conforms to the provisions of G.L.(TEr.Ed.) c. 263, § 4A, inserted by St.1934, c. 358, and Rule 100A of the Superior Court, adopted on October 6, 1934. The petitioner contends that said § 4A is unconstitutional in permitting a sentence for a felony upon a complaint rather than an indictment. The case is here upon the constitutional question involved upon the reservation and report, without decision by the single justice. It is not now contended that the petitioner's applications to waive indictment and for prompt arraignment upon the complaints were not properly approved by the Superior Court.

Section 4A of said c. 263 provides, as far as material, as follows: ‘A person committed or bound over under section thirty of chapter two hundred and eighteen or section twenty of chapter two hundred and nineteen for trial in the superior court upon a complaint charging a crime not punishable by death, who desires to waive indictment may apply in writing to the superior court for prompt arraignment upon such complaint. Upon the filing of such an application, the district attorney may, with the approval of the court, proceed against the defendant by complaint, and in such case he shall be held to answer and the court shall have as full jurisdiction of the complaint as if an indictment had been found. The arraignment of the defendant shall be at such time as the court may designate. Every person when so committed or bound over upon such a complaint shall be notified by the court of his right to apply for waiver of indictment and prompt arragnment as aforesaid.’

It was held in Jones v. Robbins, 8 Gray 329, that a statute purporting to give an inferior tribunal jurisdiction to impose the punishment of imprisonment in the State prison, without presentment by grand jury, was unconstitutional and void, being in violation of the twelfth article of the Declaration of Rights. Later decisions of this court have affirmed the general rule that no person shall be held to answer for a felony unless upon indictment. Nolan's Case, 122 Mass. 330, 332;Commonwealth v. Horregan, 127 Mass. 450;Commonwealth v. Woodward, 157 Mass. 516, 518, 519, 32 N.E. 939,34 Am.St.Rep. 302; Commonwealth v. Harris, 231 Mass. 584, 121 N.E. 409;Opinion of the Justices, 232 Mass. 601, 602, 603, 123 N.E. 100;Commonwealth v. Snow, 269 Mass. 598, 604, 169 N.E. 542, 68 A.L.R. 920. None of the foregoing cases, in which statutes were held unconstitutional, which purported to vest in inferior tribunals jurisdiction to impose the punishment of imprisonment in State prison without indictment or presentment by a grand jury, involved any question of waiver. Moreover, no question of waiver was involved in any of the other cases just cited, which touch upon the nature of the constitutional right in question.

Article 12 of our Bill of Rights is as follows: ‘No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel, at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land. And the legislature shall not make any law, that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy without trial by jury.’

It becomes important to determine whether the provisions of art. 12 that are involved in the case at bar were designed by the framers of our Constitution, and so un derstood by the people when adopting it, as a solemn assertion of the rights of the individual citizen, which the Commonwealth could not infringe, at least, without the waiver or assent of the individual, or whether these provisions were intended as absolute prohibitions, binding not only the Commonwealth, but also the individ ual, so that the latter could have no right, by the exercise of his free and intelligent will, to waive them.

In the preamble to the Constitution the people declared, agreed upon, ordanied and established ‘the following Declaration of Rights, and Frame of Government, as the Constitution’ of the Commonwealth. The Declaration of Rights is entitled ‘A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts.’ The ‘Frame of Government’ follows the Declaration.

Chief Justice Shaw, in Jones v. Robbins, 8 Gray, 329, at page 339, said: ‘But it is true that, by the Bill of Rights, various restrictions are placed upon this general power [of the Legislature], intended for the better security of persons accused of crime against arbitrary and hasty public prosecutions.’ After quoting art. 12 of our own Bill of Rights, he adverted to the last sentence which provides, in effect, that the Legislature shall not make any law that shall subject any person to a capital or infamous punishment without trial by jury; stating at page 341 of 8 Gray: ‘And we believe it has been generally understood and practised here and in Maine, and perhaps in other states having a similar provision, that as the object of the clause is to secure a benefit to the accused * * * he may avail himself of [it] or waive [it], at his own election.’ And at page 344 of 8 Gray he said: ‘The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense and anxiety of a public trial, before a probable cause is established by the presentment and indictment of a grand jury, in case of high offences, is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty.’

It was held in Commonwealth v. Rowe, 257 Mass. 172, 153 N.E. 537, 48 A.L.R. 762, that the right to trial by jury ‘guaranteed by our Constitution to every person [Declaration of Rights, arts. 12, 15] is a privilege which the person may waive for reasons satisfactory to himself.’ 257 Mass. at page 174, 153 N.E. at page 538, 48 A.L.R. 762. It was there said at page 175 of 257 Mass., at page 539 of 153 N.E.,48 A.L.R. 762, that no prohibition was placed upon the individual in regard to a trial by jury, but that the prohibition was placed upon the Commonwealth, and that the court could find nothing in the words of our Constitution that declares or manifests an intention to deprive the individual of the power to refuse to assert ‘his constitutional right to trial by jury.’ And at page 176 of 257 Mass., at page 539 of 153 N.E.,48 A.L.R. 762, it was said: ‘Again and again, as the cases referred to illustrate, this court has treated the right as a privilege sacredly regarded by the commonwealth and preserved to the individual against assault by the state; but a privilege which he could waive, and, in certain circumstances, would be treated as waiving,’ that Chief Justice Shaw, in Commonwealth v. Dailey, 12 Cush. 80, 83, had laid down as the law of Massachusetts, that a defendant ‘may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court.’ ‘When there is no constitutional or statutory mandate, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy.’ Schick v. United States, 195 U.S. 65, 72, 24 S.Ct. 826, 828, 49 L.Ed. 99,1 Ann.Cas. 585. As was said in Commonwealth v. Dailey, 12 Cush. 80, at page 82: ‘It may be said, perhaps, that a criminal case is no trial of a party's rights; that it is for the interest of the public, in the administration of public justice, that no man shall be convicted or acquitted, otherwise than according to the course provided by law. Still, even in the administration of criminal law, many legal provisions are made for the security and benefit of the accused, and it may be for his interest and benefit to waive them. He may in the first place waive a trial altogether, and plead guilty. He may consent to admit legal instruments offered on the other side, without legal proof of execution, on...