Smith v. Com.

• Decision Date: 16 September 1954
• Citation: 121 N.E.2d 707,331 Mass. 585
• Parties: Carl G. SMITH v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 707

121 N.E.2d 707

331 Mass. 585

Carl G. SMITH v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued June 29, 1954.

Decided Sept. 16, 1954.

George H. Lewald, Boston, for defendant.

George Fingold, Atty. Gen., Malcolm M. Donahue, Asst. Atty. Gen., for the Commonwealth.

Before QUA, C. J., and LUMMUS, SPALDING, WILLIAMS and COUNIHAN, JJ.

QUA, Chief Justice.

The petitioner has sued out his writ of error to reverse a sentence of from eight to ten years in the State prison imposed upon him, after trial in the Superior Court at Worcester, on August 31, 1951, for breaking and entering a building in West Boylston in the nighttime on February 15, 1949, and larceny therefrom. The contention of the petitioner was and is that on February 15, 1949, he was in or near Chicago in the State of Illinois and was not at West Boylston in this Commonwealth. The single justice reserved and reported the case.

The case was fully heard by the single justice of this court on the writ of error. He made a statement of some of the evidence before him and made certain findings thereon. It will be necessary to recite this evidence and the findings in some detail.

There was evidence by the petitioner and one Cavanaugh that both had been arrested in Portland, Maine, on March 2, 1949, for what offence does not appear. The report of the single justice continues, 'They escaped from jail on April 5, 1949, and were captured and charged with stealing a truck while they were at liberty. The petitioner became apprehensive before he escaped that he might be severely punished, and to avoid imprisonment in Maine he sent for police officers from Boston to whom he confessed a burglary committed on March 1, 1949, which he later repudiated. When he did not succeed in being brought back to Boston, he then made a confession concerning the West Boylston job in order to have the officers bring him to Worcester but the officers took his confession, left him in the Maine jail, and took him to Worcester for trial when he was subsequently discharged in Maine. All the information contained in this confession, it was claimed, was given to him by a fellow convict in Maine in the presence of William Cavanaugh. The petitioner so testified at the trial of the indictment but refused to name the convict and he also refused to name the convict at the hearing before me. Cavanaugh testified at the trial and at the hearing that he did not know the name of the convict.'

The single justice found, as we construe his report, that the petitioner had been injured on January 10, 1949, while he was a seaman on a tanker owned by Cities Service Oil Company. He was discharged from a hospital in New York on January 31. He went to the office of the oil company in New York, apparently in reference to a claim arising out of his injury. When he informed the oil company that he was going to Gary, Indiana, it gave him a letter of introduction to a Chicago law firm which represented the company. The petitioner arrived in Gary on February 2, and left there for New York on February 17.

Various letters and documents were introduced in evidence before the single justice, 'not as evidence of the truth of their contents but merely to show knowledge of their existence by the district attorney before the trial.' Findings of the single justice relative to these exhibits are as follows: 'He * * * [the petitioner] produced an affidavit from the family with whom he stayed in Gary. He testified that while in Gary he was employed in a department store and had a letter from the store stating such employment. Gary is 28 miles from Chicago. He visited the law firm in Chicago on four occasions. He transacted his business with John R. Rogers who was employed by the firm. Rogers gave him a check on February 7, 1949, and also on February 17, 1949. Both checks were cashed on their respective dates at a Chicago bank, and one Meyer, an official of the bank, sent a letter on October 20, 1949, to this effect to the petitioner. The payment on February 17, 1949, was evidenced by the original receipt signed by the petitioner and witnessed by Rogers. This receipt was sent to him by the law firm. The daily work sheet made out by Mr. Rogers contains an item indicating that the petitioner called Mr. Rogers twice on the telephone on February 15, 1949, and also that he personally conferred with Mr. Rogers on that day. Mr. Rogers under date of March 8, 1951, gave the petitioner an affidavit showing one telephone call and the conference. A bill rendered by the law firm to its client contained an item showing a charge for this conference with the petitioner. Mr. Peterson, the head of the law firm, wrote the district attorney on May 4, 1951, that the petitioner was in the law office on February 15, 1949, and also on said date sent an affidavit to this effect to the district attorney, and he stated that he was willing to testify by deposition to this effect. It did not appear that the district attorney did anything to verify any of the facts alleged in these letters or affidavits copies of which had been left at his office by one John Cavanaugh in March, 1951. John Cavanaugh is the brother of William E. Cavanaugh who was then under indictment with the petitioner charged with the same offence as the petitioner, but subsequently the indictment against him was nol prossed.'

At the trial in the Superior Court the judge admitted an automobile operator's license secured by the petitioner in Gary on Febrary 8 'and also one or two of the letters or affidavits already mentioned.' All were admitted at the hearing of a motion for new trial, which was denied. ¹ The petitioner in the brief submitted to us by his counsel asserts that he had no attorney at the trial, but there is nothing in the record to that effect. The brief also contains an alleged statement as to what the trial judge said which does not appear in the record and contains other statements not borne out by the record. No attention can be paid to such statements.

The report of the single justice continues as follows: 'The petitioner concedes that these various letters and affidavits were hearsay and that there was no error committed by the trial judge in excluding them. He further concedes that the truth of the matters mentioned in them was not open at the hearing upon this petition. His only contention is that, the district attorney having been seasonable presented with copies of them, it was his duty to determine the truth of their contents which he could have easily done, or that he should have seasonably apprised the trial judge of their contents, or that he should have taken some other means of protecting the rights of the petitioner if he intended to try the indictment. No other question is now presented.' This defines exactly the issue presented at the hearing on the writ before the single justice and therefore the issue before us on the present record. That issue relates exclusively to the conduct of the district attorney. Although the assignments of error are stated somewhat more broadly, we are confined on the present record to the questions reported, as in the case of a bill of exceptions we would be confined to the exceptions taken. G.L.(Ter.Ed.) c. 250, § 2. Rule 50 of the Rules for the Regulation of Practice at Common Law and in Equity (1952), 328 Mass. 726. Rothschild v. Knight, 176 Mass. 48, 53, 57 N.E. 337; Aldrich v. Boston & Worcester Railroad Co., 100 Mass. 31; Churchill v. Palmer, 115 Mass. 310, 313; Smith v. Lincoln, 198 Mass. 388, 392-393, 84 N.E. 498; Scanlon v. Carey, 207 Mass. 285, 286, 93 N.E. 697; Crowe v. Boston & Maine Railroad, 242 Mass. 389, 392-393, 136 N.E. 189; Daddario v. City of Gloucester, 329 Mass. 297, 299-300, 107 N.E.2d 819.

It also becomes necessary to take into account certain important findings of the single justice not yet stated. In his own words these findings are: 'The confession furnished the most minute details concerning the West Boylston burglary. It stated the exact amount of money that was stolen including a ten dollar bill which was enclosed in a Christmas envelope. It not only stated the amount of liquor stolen but specified the brands. It furnished the authorities with information which they did not have and which was found to be true. For instance, they found the safe in a field mentioned in the confession. It was damaged in the precise manner described in the confession. In short, as testified by the petitioner, it stated everything concerning the burglary except the weather. The petitioner testified that he had adopted this method of giving confessions which he subsequently repudiated in various instances which he named solely for the purpose of securing his release from the prison where he happened to be then confined. I find that the district attorney and the assistant district attorney who prosecuted the indictment became cognizant of the contents of these letters and affidavits a few months before the trial. Both acted...