Commonwealth v. Storti

58 N.E. 1021, 177 Mass. 339, 1901 Mass. LEXIS 642

• Court: Massachusetts Supreme Judicial Court
• Decided: January 2, 1901
• Status: Published

Opinion

Holmes, C. J.

This is an indictment for murder upon which the defendant has been found guilty, and the case is here on exceptions and upon an appeal from the overruling of a motion to quash. The indictment is in two counts. It cannot be argued that the first is bad. The second count is in the form provided by St. 1899, c. 409, and is attacked on the ground that it does not satisfy the requirements of Article XII. of the Massachusetts Bill of Rights. Without- giving any countenance to this suggestion, it is enough to say that, the two counts are for the same offence, that any evidence which would justify or require a verdict of guilty on the one equally would justify or require it on the other, and that under such circumstances a general verdict is supported by the first count. Therefore any discussion of constitutional law is unnecessary. Commonwealth v. Nichols, 134 Mass. 531, 535, 536. Commonwealth v. Kennedy, 170 Mass. 18, 20.

The murder was committed in a sleeping-room in which the defendant and the murdered man were passing the night along with others. A witness for the government having testified that he was called from the opposite room by one Sarni after the murder had been committed and the defendant had fled, and having described what and whom he saw, was asked by the defendant what Sarni said. The exclusion of this evidence was excepted to. The exclusion was right. Commonwealth v. James, 99 Mass. 438, 441. The statement was pure hearsay. It did not concern a state of mind of the speaker, and therefore did not fall within the exception as to cases of that class. Moreover the state of mind of Sarni was immaterial. The state of mind of the witness at the moment when he was called was equally immaterial. Again, what Sarni said did not explain or qualify the summons in any way in which it was admissible to explain it. The summons needed no explanation, and, although admitted without objection, itself was immaterial except as merely introductory to and explanatory of the fact that the witness went to the room. The evidence amounted to no more than that in consequence of what was said the witness went to the scene of the murder. Finally, Sarni did not even see what happened, as he was asleep at the time. See further Commonwealth v. Chance, 174 Mass. 245, 251.

The next exception is to the admission of evidence of a quarrel and blows between the defendant and the murdered man in Italy about two years before, followed, three or four months later, by threats on the defendant’s part. Subject to the question of its admissibility, with which we shall deal in a moment, there was evidence of statements by the defendant showing a continuous state of hostility ever since. The exception cannot be maintained. Commonwealth v. Goodwin, 14 Gray, 55. Commonwealth v. Quinn, 150 Mass. 401, 404. Commonwealth v. Holmes, 157 Mass. 233, 240. Commonwealth v. Crowe, 165 Mass. 139. One of the statements objected to in this connection was that the witness saw the deceased, and the defendant in court when he testified on a former occasion. If we are to take the evidence as meaning that the two were seen by the witness when on trial in Italy for their quarrel, the fact was not put in for the purpose of proving the event of the trial or anything else concerning it which called for a production of the Italian record, if there was one. The fact seems to have been mentioned only in the enumeration of the times that the witness had seen the parties. Even if the record had been put in, this evidence would have been proper to identify the parties.

The admission of statements made by the defendant to the officers who arrested him was excepted to, mainly on the ground that the statements were not voluntary. The judges who tried the case were warranted in finding that the statements were freely made, and whatever latitude we may use in reviewing these findings of fact, we cannot say that they were wrong. Commonwealth v. Bond, 170 Mass. 41. The first conversation was in the station-house, just after the arrest on the day following the murder. In this nothing of great importance was said. But the defendant in denying his guilt said that he never was in Boston, which of course was evidence against him. In the next, on the following day at the same place, the defendant admitted striking the deceased with an axe. So far no inducements had been held out to him, and the facts that the prisoner was in custody and was questioned by an officer are not conclusive against this evidence. On the train from Hudson, where he was arrested, to Boston, he asked the officer whether Calucci was dead, how much imprisonment they would give the defendant, and whether they would make him die. He said that Calucci and he were great enemies, and it was only a question of time, that Calucci would kill him if he did not kill Calucci, and so on, with further particulars.

The first full and extended examination was in the Bosfom station-house, in the presence of three officers, one of whom put questions through an interpreter, and the questions and answers were taken down by a stenographer. The interpreter was a witness at the trial, and swore that he accurately translated all that was said by the officer to the prisoner and all the answers which the prisoner made. The stenographer testified that he accurately took it all down. What seems to be the chief ground of objection to this examination is that according to his own testimony the interpreter said to the prisoner that “ what would be against him, that will be brought in court against him, or in favor, as it was.” We understand this to mean in imperfect English that whatever was said would be used in court, against the defendant if unfavorable, or for him if favorable. It is hard to find an inducement to make a confession or to say things unfavorable to himself in these words. But, if it be thought that there was an inducement to speak when otherwise he might have remained silent, Bram v. United States, 168 U. S. 532, 549, 550, it is enough to say that, according to the testimony of the stenographer from his notes, the prisoner was asked if he wished to make any statement of his own free will, answered yes, and then was cautioned simply that everything he said might be used against him in court. This is confirmed by other evidence, and, to say the least, the presiding judges were warranted in taking it as the true account.

An objection was taken to the stenographer’s evidence on the ground that it was hearsay, as he merely put down what the interpreter reported. But.without seeking for further possible answers, it is enough to repeat that the interpreter testified that he reported correctly. See Commonwealth v. Vose, 157 Mass. 393. It would be refining too much and not in the direction of accuracy to say that the confessions, although taken down in their English translation, should have been proved in Italian and then translated before the jury. The English was the most accurate evidence attainable at the time of the trial. Camerlin v. Palmer Co. 10 Allen, 539, 541.

After the judges had found that the confessions were admissible, the defendant asked for a string of rulings, largely platitudes, on the question of admissibility. These were presented too late, and the court was quite right in refusing on that ground to consider them.

The only exception which causes hesitation on our part is to the exclusion of evidence that, at the talk in the Hudson station-house, Rooney, one of the officers, said in English to Rosatto, another, who was speaking with the prisoner in Italian, “ Tell him it will be better fa„r him if he tells.” But it appears that the defendant did not speak or understand English, and not only was there no evidence that such a suggestion was communicated to the prisoner, but all the testimony was that it was not communicated, if such a statement was made. It did not even appear that Rooney spoke in the prisoner’s, hearing.

A witness for the government was allowed to testify in rebuttal how many bottles of beer he had drunk on the evening of the murder. Evidence having been gone into previously by both sides on the question of his sobriety, there is nothing to show that the court exceeded its discretionary powers. Commonwealth v. Meaney, 151 Mass. 55.

Decree overruling motion to quash affirmed; exceptions overruled.