In re Lebowitch

• Court: Supreme Judicial Court of Massachusetts
• Citation: In re Lebowitch, 235 Mass. 357 (Mass. 1920)
• Decision Date: 30 March 1920
• Parties: In re WILLIAM LEBOWITCH, petitioner. WILLIAM LEBOWITCH v. COMMONWEALTH.

235 Mass. 357

In re WILLIAM LEBOWITCH, petitioner. WILLIAM LEBOWITCH v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1920

March 11, 1920.

Present: RUGG, C.

J., BRALEY, CROSBY PIERCE, & JENNEY, JJ.

Constitutional Law Secrecy of grand jury proceedings. Jury and Jurors. Practice Criminal, Grand jury proceedings, Abatement, Trial together of counts alleging distinct offences, Stay of sentence. Pleading, Criminal, Indictment, Plea. Witness. Attempt to Commit Crime. Writ of Error. Habeas Corpus.

If an indictment is returned by a grand jury upon evidence received by them from witnesses who testified in the presence of persons whose presence at the hearing was not necessary for the grand jury to ascertain the truth relating to matters under investigation, and if the defendant objects to the indictment on those grounds before he pleads generally, the indictment must be quashed; but such an objection, raised by a petition for a writ of habeas corpus and by a writ of error after a general plea of "not guilty," a trial, a verdict of guilty and a sentence, comes too late.

Even constitutional rights of a defendant under indictment, if they do not affect the jurisdiction of the court over the subject matter of the indictment, must be asserted seasonably. The soundness of an indictment is admitted by a general plea.

Statement by RUGG C. J., of some instances where the presence before a grand jury, while a witness is testifying, of persons other than the witness is lawful because it is necessary in order that the grand jury may ascertain the truth as to the matter under investigation.

There is no error in sentencing to the house of correction for thirty months one who has been found guilty on two counts of an indictment severally charging him with separate attempts to commit larceny from the person.

It is not error to place a defendant, charged in two counts of an indictment with distinct attempts to commit larceny from the persons of different individuals, on trial upon both counts of the indictment at the same time.

A refusal by a judge of the Superior Court to stay execution of a sentence imposed upon a defendant who had been found guilty after the trial of an indictment for crime is not subject to review either upon a petition for a writ of habeas corpus or upon a writ of error.

The provisions of R.L.c. 220, Section 3, in substance requiring that sentence must be imposed, upon conviction of a crime not punishable by death, notwithstanding the pendency of exceptions, unless the trial judge or a justice of the Supreme Judicial Court shall file a certificate that in his opinion there is reasonable doubt whether the judgment should stand, is constitutional. In refusing to grant a motion for a stay of execution under R.L.c. 220, Section 3, the judge need not state his reasons.

PETITION, filed in the Supreme Judicial Court on April 2, 1919, for a writ of habeas corpus commanding the production before the court from the House of Correction in Suffolk County of the body of the petitioner; also a

WRIT OF ERROR, issued on April 7, 1919, to the Chief Justice of the Superior Court upon petition of the same petitioner, directing the production of the record and proceedings in the indictment, trial, conviction and sentence of the petitioner.

In both petitions it was alleged that on April 6, 1918, the grand jurors for the county of Suffolk returned an indictment against the petitioner in two counts, the first count charging an attempted larceny from the person of one William C. Hunnemann and the second count charging an attempted larceny from the person of one Eben S. Allen; that, during the hearings of the case by the grand jury, there were present Hunnemann and Allen, certain police officers and other persons, not members of the grand jury nor persons lawfully authorized to be with the grand jury while it was hearing the case, and that the petitioner had no knowledge thereof until after his conviction and sentence; that during the trial of the indictment by a traverse jury, the petitioner alleged exceptions to the admission of evidence and to rulings and refusals to rule by the presiding judge; that the petitioner was found guilty and sentenced, and that thereafter he moved for a stay of the sentence until his exceptions were passed upon by this court and that the motion was denied.

The grounds upon which the writ of habeas corpus was asked were that the unlawful presence of persons before the grand jury rendered the indictment against the petitioner invalid, and that the denial of the petitioner's motion to stay sentence and the imposing of sentence upon him before this court had passed upon his exceptions was a denial to him of the due process of law and of the equal protection of the law to which he was entitled under art. 14 of the Amendments to the Constitution of the United States.

The errors alleged in the petition for a writ of error were, in substance, (1) that the unlawful presence of persons before the grand jury rendered the indictment against the petitioner invalid; (2) that the sentence imposed upon the petitioner "was wholly unauthorized and inconsistent with the law of this Commonwealth;" (3) that the trial of the petitioner upon the indictment, "there being two counts therein for two distinct attempts of larceny from the person, committed at different places and in no way connected, infringed upon the inalienable right of a fair and impartial trial which is guaranteed by the Constitution of the United States and of this Commonwealth to every person charged with crime;" (4) that the denial to the petitioner of a stay of sentence until this court had passed upon his exceptions was a denial to him of the right of liberty, and (5) of the due process of law and the equal protection of the law which was his right under art. 14 of the Amendments to the Constitution of the United States.

The Commonwealth filed a plea in nullo est erratum, in which, among other allegations, were the following:

"1. In the hearing of said case of Commonwealth v. Lebowitch et al before the grand jury which returned the indictment, all witnesses, including the police officers, were in the grand jury room at the time when each of said witnesses was interrogated by an assistant district attorney, and when each gave his testimony, and that the testimony of each of the witnesses was given in the hearing and presence of the other witnesses in the case; but that none other than material witnesses in the case, a stenographer who was duly sworn as required by law, and the assistant district attorney were present at said hearing; that none of said witnesses or persons were present during the deliberations of the grand jury upon said case except that the assistant district attorney was present at said deliberations.

"2. The claim that the indictment against the petitioner was invalid by reason of the presence of persons before the grand jury was not raised in the Superior Court by motion or plea of any kind nor in any way brought to the attention of the court until after a plea of not guilty, verdict of guilty, sentence, and stay of sentence had been refused, although the Commonwealth is willing to concede, if the plaintiff in error so claims, that information of the presence of said persons before the grand jury as above admitted did not come to the knowledge of the plaintiff in error, or his counsel, until after the defendant had been sentenced, and the motion to stay sentence had been passed upon and denied.

"3. Before the recent decision of this court in the case of Commonwealth v. Harris, 231 Mass. 584 , it had been the long continued usage and custom in the Suffolk District of said Commonwealth and the unbroken practice for over forty years known and acquiesced in by the justices of the Superior Court, for the grand jury, in their discretion, to permit the presence of more than one witness, including police officers when witnesses, in the grand jury room during the hearing of causes and investigations; that the exercise of this discretion by the grand jury has been found to be necessary at times to call interpreters to remain during the hearings, to confront witnesses with each other, to have witnesses make identifications in the...