Golyer v. Commonwealth

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtCOX
Citation51 N.E.2d 251,314 Mass. 626
PartiesDE GOLYER v. COMMONWEALTH.
Decision Date28 October 1943

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.

[51 N.E.2d 252]

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,

[51 N.E.2d 253]

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...

To continue reading

Request your trial
29 practice notes
  • Com. v. Mayfield
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 25, 1986
    ...as to a serious crime is constitutionally based. Art. 12 of the Massachusetts Declaration of Rights. See DeGolyer v. Commonwealth, 314 Mass. 626, 627, 51 N.E.2d 251 The opinion of the Supreme Court in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), has tended to......
  • King v. State, No. 44796
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 23, 1971
    ...aff'd, 424 Pa. 641, 226 A.2d 863 (1967) (per curiam); Tuttle v. State, 158 Me. 150, 180 A.2d 608 (1962); De Golyer v. Commonwealth, 314 Mass. 626, 51 N.E.2d 251 (1943); Edwards v. State, 45 N.J.L. 419 23 See Report of the Committee on Criminal Law and Proc. 53 Proc.Tex.Bar Assn. 160 (1934);......
  • City of Dothan v. Holloway
    • United States
    • Supreme Court of Alabama
    • July 25, 1986
    ...for due and proper administration of the law that no individual may waive it. [Emphasis added.] "In De Golyer v. Commonwealth, 314 Mass. 626, 51 N.E.2d 251, it was pointed out that the Massachusetts bill of rights has consistently denied the power of the Legislature to permit trial whi......
  • Commonwealth v. Walczak, No. SJC-11155
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 12, 2012
    ...Moran, 453 Mass. 880, 884-887 (2009); Lataille v. District Court of E. Hampden, 366 Mass. 525, 531-532 (1974); DeGolyer v. Commonwealth, 314 Mass. 626, 632-633 (1943); Commonwealth v. Harris, 231 Mass. 584, 585 (1919). We have long recognized: "The right of individual citizens to be se......
  • Request a trial to view additional results
29 cases
  • Com. v. Mayfield
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 25, 1986
    ...as to a serious crime is constitutionally based. Art. 12 of the Massachusetts Declaration of Rights. See DeGolyer v. Commonwealth, 314 Mass. 626, 627, 51 N.E.2d 251 The opinion of the Supreme Court in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), has tended to......
  • King v. State, No. 44796
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 23, 1971
    ...aff'd, 424 Pa. 641, 226 A.2d 863 (1967) (per curiam); Tuttle v. State, 158 Me. 150, 180 A.2d 608 (1962); De Golyer v. Commonwealth, 314 Mass. 626, 51 N.E.2d 251 (1943); Edwards v. State, 45 N.J.L. 419 23 See Report of the Committee on Criminal Law and Proc. 53 Proc.Tex.Bar Assn. 160 (1934);......
  • City of Dothan v. Holloway
    • United States
    • Supreme Court of Alabama
    • July 25, 1986
    ...for due and proper administration of the law that no individual may waive it. [Emphasis added.] "In De Golyer v. Commonwealth, 314 Mass. 626, 51 N.E.2d 251, it was pointed out that the Massachusetts bill of rights has consistently denied the power of the Legislature to permit trial whi......
  • Commonwealth v. Walczak, No. SJC-11155
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 12, 2012
    ...Moran, 453 Mass. 880, 884-887 (2009); Lataille v. District Court of E. Hampden, 366 Mass. 525, 531-532 (1974); DeGolyer v. Commonwealth, 314 Mass. 626, 632-633 (1943); Commonwealth v. Harris, 231 Mass. 584, 585 (1919). We have long recognized: "The right of individual citizens to be se......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT