McGarty v. Commonwealth

• Decision Date: 06 November 1950
• Citation: 326 Mass. 413,95 N.E.2d 158
• Parties: McGARTY v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

326 Mass. 413

95 N.E.2d 158

McGARTY v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

November 6, 1950

Writ of Certiorari Denied Nov. 25, 1950.

Argued Oct. 3 1950.

See 71 S.Ct. 199.

J. S. Seligman Fall River, for plaintiff in error.

H. P. Fielding Asst. Atty. Gen., for the Commonwealth.

Before QUA, C. J and RONAN, SPALDING and WILLIAMS, JJ. QUA, Chief Justice.

The petitioner alleges in his petition that he has been tried and convicted of murder in the first degree and has been sentenced to pay the death penalty as provided by law. The only error set forth as the basis of his petition is the denial by the judge of the trial court of a motion by the petitioner that he 'being without funds, be allowed to employ two (2) psychiatrists at the expense of the Commonwealth so that he may properly defend himself against the crime as charged by the Commonwealth.' It is alleged that this denial violated the petitioner's constitutional rights. The petition came on for hearing before a single justice of this court upon the sole question whether or not a writ of error should issue. The writ was denied, and the petitioner excepted.

For more than a century the issuance of a writ of error upon a judgment for a capital offence has rested in the sound discretion of a single justice of this court. Rev.Sts. c. 112, § 16. Commonwealth v. Sacco, 261 Mass. 12, 16, 158 N.E. 167, 169. The present statute reads in part, 'A writ of error upon a judgment for a capital crime * * * [and certain other felonies] shall not issue, unless allowed by a justice of the supreme judicial court after notice to the attorney general or other attorney for the commonwealth; but a writ of error upon a judgment in any other criminal case shall issue as of course * * *.' G.L.(Ter.Ed.) c. 250, § 11. In the Sacco case it was indicated that the 'plain intention of the Legislature' was 'to discourage and prevent unnecessary delay'. The defendant has as of right an entirely different and adequate remedy for errors in the proceedings by a seasonable appeal under G.L. (Ter.Ed.) c. 278, §§ 33A-33G. Ordinarily the single justice ought to issue the writ if it seems to him that there is any reasonable possibility that error of substance has occurred which can be corrected thereby, and ought to refuse it where the petition seems to him to have been brought without reasonable cause and to have been intended merely for delay. That the same points can be taken by appeal in accordance with G.L. (Ter.Ed.) c. 278, §§ 33A-33G, is not necessarily decisive against the issuance of the writ. Commonwealth v. Marsino, 252 Mass. 224, 227-228, 147 N.E. 859, and cases cited. ^[1] It follows from what has been said that where the action of the single justice in refusing to issue a writ of error in a capital case is brought to the full court for review the question is whether the single justice abused his discretion.

There was no abuse of discretion in this case.

1. This court has already reviewed the proceedings leading to the sentence of this petitioner on appeal by him with assignments of error in accordance with the regular procedure provided by G.L. (Ter.Ed.) c. 278, §§ 33A-33G. Commonwealth v. McGarty, 323 Mass. 435, 82 N.E.2d 603. ^[2] His first assignment of error on that appeal was the denial by the trial judge of the same motion the denial of which is the foundation of his present petition for writ of error. The petitioner in his brief on his appeal, of which we take judicial notice, Culhane v. Foley, 305 Mass. 542, 543, 26 N.E.2d 331, relied upon G.L. (Ter.Ed.) c. 277, § 56, ^[3] as authorizing the judge to allow the motion and took the position that while he did not contend that this statute contained a 'mandate' to the court to allow it, nevertheless the 'gravity' of the case 'warranted' its allowance in order to safeguard the petitioner's constitutional rights, so that it was the 'bounden duty' of the court to allow the motion, 'and that failure to do so constituted abuse of judicial discretion and prejudicial error.' This court dealt with the alleged error in the denial of this motion in the fifth paragraph of its opinion. Commonwealth v. McGarty, 323 Mass. 435, at page 437, 82 N.E.2d 603, 605. We there held that even if the trial judge could have granted the motion, the matter was discretionary, and we concluded with the statement, 'We find no error in the denial of the motion.' The opinion, however, does not discuss constitutional law. It appears, therefore, that in his appeal the petitioner asserted the same alleged error which he now asserts; that, whatever the language in his brief may mean, he argued the point upon such grounds as he saw fit, and that this court decided the point against him upon grounds which it deemed sufficient. A court of appeal does not commonly reconsider on a later appeal a matter previously decided on an earlier appeal. Peterson v. Hopson, 306 Mass. 597, 599-600, 29 N.E.2d 140, and cases cited. We are of opinion that for the reasons above stated, even if the single justice could have granted the writ, which we need not decide, his refusal to grant it was at least within the limits of a sound and reasonable judicial discretion, and we so hold.

2. But in the circumstances of this case we are unwilling to end this decision at this point. The petitioner has been sentenced to be executed. The wording of his brief upon his appeal is so obscure that it is seriously doubtful whether he advanced any argument on constitutional grounds, and this court did not deal with the question from a constitutional standpoint. If, however, upon full consideration of the argument now made by the petitioner it appears that the constitutional point is without merit, that fact alone will demonstrate either that the single justice acted within the limits of discretion in refusing to grant a writ which, if granted, would plainly have been barren of result, or at least that there was no harmful error in refusing the writ.

In our opinion the constitutional point is wholly without merit. This Commonwealth has made special provision for the mental examination of all persons indicted for capital offences (and some others) through the department of mental health. By G.L (Ter.Ed.) c. 123, § 100A, ^[4] as amended by St.1941, c. 194, § 11, it is provided that the department 'shall cause such person to be examined with a view to determine his mental condition and the existence of any mental disease or defect which would affect his criminal responsibility. * * * The department shall file a report of its investigation with the clerk of the court in which the trial is to be held, and the report shall be accessible to the court, the probation officer thereof, the district attorney and to the attorney for the accused.' In Commonwealth v. Devereaux, 257 Mass. 391, at page 396, 153 N.E. 881, at page 883, this court said of this statute, 'The examination is required in order that no person so indicted may be put upon his trial unless his mental condition is thereby determined to be such as to render him responsible to trial and punishment for the crime charged against him, and that he...