COMMONWEALTH vs. STEFAN BORASKY & another.

RUGG, C. J. The indictment charged the defendant and one Antone Kolek with having committed the crime of murder by

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killing Rose Amansky. Both were convicted, but Kolek has deceased since the trial. It does not appear to have been disputed at the trial that the woman was murdered.

1. Borasky seasonably filed a motion that he should have a separate trial on the grounds that there would probably be introduced in evidence a written confession made by Kolek, which implicated both defendants, and that, as he had been unable to obtain a copy, the court should order the Commonwealth to furnish a copy, in order that it might be annexed to his motion. At the argument in support of the motion the presiding judge [Note p316-Star] was requested to examine the confession in the presence of the district attorney and in the absence of the defendant Borasky or his counsel. There was no error in the denial of the motion. Whether two defendants indicted jointly shall be tried together is discretionary with the trial court. This has been decided many times respecting the trial of crimes involving a punishment less than capital. Commonwealth v. Robinson, 1 Gray 555, 560. Commonwealth v. Thompson, 108 Mass. 461. Commonwealth v. Miller, 150 Mass. 69. Commonwealth v. Bingham, 158 Mass. 169. Commonwealth v. Bishop, 165 Mass. 148. Commonwealth v. Seeley, 167 Mass. 163. In Commonwealth v. James, 99 Mass. 438, it was stated, in the course of a trial for murder heard by the full court sitting in bane for the trial of two defendants jointly indicted for murder, that "The general rule is, that persons jointly indicted should be tried together." The confession was there regarded as presenting "an exceptional case " and it was intimated that a separate trial would be granted if the Commonwealth intended to offer the confession. It was not offered and was withdrawn by the Commonwealth, and a joint trial was had. It does not appear that the intimation there was thrown out in any other way than as the exercise of discretion. That such a motion is not to be granted as of right but rests in the sound judicial discretion of the trial court, even in capital cases, is the rule in the federal courts. United States v. Marchant, 12 Wheat. 480. United States v. Ball, 163 U. S. 662, 672. There is nothing in the case at bar to indicate any abuse of discretion. Plainly, the presiding judge was not required to examine the alleged confession in the presence of the

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district attorney and in the absence of counsel for the defendant. During the trial the judge was scrupulous to advise the jury, whenever any statements made by Kolek in the absence of Borasky implicating the latter were offered in evidence, that they were not to be considered against Borasky.

2. William F. Stibbs, called as a juror, stated in reply to one of the usual questions put by the presiding judge that he was prejudiced in favor of capital punishment. Further questions by the judge developed that the juror would favor conviction only if guilt was established on the evidence beyond a reasonable doubt. At the conclusion of the examination the judge said, "I don't see as your prejudice amounts to anything." This fairly summarizes the result of the answers of the juror. He then was sworn. After the panel was completed and all the jurors sworn, the counsel for the defendants asked that the juror Stibbs be challenged for cause, for the reason that they had not understood his answer that he was in favor of capital punishment. The ancient and common statement in court touching the right of challenge is that it must be exercised before the juror is sworn. See Commonwealth v. White, 208 Mass. 202, 208. But without placing the decision on that ground, it is plain that the juror was indifferent in law, that he had no knowledge from any source as to the case, and that his answer only meant a firm belief in capital punishment in cases in which it is provided by law. This is far from disqualification in a juror. Commonwealth v. Abbott, 13 Met. 120.

3. An autopsy was performed by the medical examiner of which a record was made. R. L. c. 24, s.s. 9, 10, as amended by St. 1909, c. 273, s. 1. The defendant, Borasky, objected to the testimony of the physician, who performed the autopsy, as to his observations, on the ground that the record was the best evidence. This objection was overruled properly. The testimony of the witness who was present and observed the condition revealed by the autopsy was admissible. Commonwealth v. Dunan, 128 Mass. 422.

4. There was testimony tending to show that a check taken from the body of the murdered woman was procured to be cashed by one of the defendants. Her daughter-in-law, Minnie Amansky, who could neither read nor write, testified that she recognized a check shown her as the one in question from the picture of vegetables on it. Against the objection and exception of the defend-

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ant Borasky, she was permitted to testify that she had seen other checks from time to time like the one she had identified on the witness stand. This was not error. The testimony of . an illiterate person as to the identity of a written instrument is not incompetent. Commonwealth v. Meserve, 154 Mass. 64. Its value may depend upon the degree of familiarity of the witness with instruments like in kind and evidence tending to show such familiarity has probative force.

5. The defendant Kolek, on the cross-examination of Minnie Amansky, asked if in the police court, referring to a day or two before the murder, in reply to the question, "You found Stefan sleeping in the lot?" she did not testify, "Yes, my mother-in-law says to me, "You know Stefan has come." The witness answered in the affirmative. He then asked her, apparently in an effort to show some statement contrary to her earlier testimony, whether her mother-in-law did say two days before her death, "Do you know that Stefan has come?" The judge admitted the question, so far as it related to Kolek, but directed the jury to disregard it utterly, so far as Borasky was concerned. This was not error. There appears to have been no controversy that Borasky was a guest at the Amansky house on that day and night, and it is difficult to see how in any event he could have been injured by the testimony. But it was distinctly limited in its effect by the ruling of the judge that it was not evidence against him. The same admonition by the judge was given respecting testimony of Godel Amansky [Note p318-Star] to the effect that the defendant Kolek had told him two days before the murder that the defendant Borasky was in the field. The jury was cautioned, whenever occasion arose, not to consider in any way against Borasky evidence competent against Kolek alone. This protected the rights of the present defendant. Commonwealth v. Rogers, 181 Mass. 184, 193. Commonwealth v. Bishop, 165 Mass. 148, 151.

6. The testimony of Godel Amansky was competent, that both defendants, after having been in his house and having seen the woman who was subsequently murdered, attracted his attention by the way in which they looked at him, and that later they laughed

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at him as he was working in his barn. The conduct, actions and bearing of the defendants, within two days before and at or near the place of the commission of the crime with which they were charged, was admissible. It was, at least, within the discretion of the trial judge. There were circumstances about the presence of both defendants at the Amansky place which might have been found to indicate some design.

7. A witness, who was a clerk in a liquor store, was permitted, against the exception of the defendant Borasky, to testify that on the evening of the day when Rose Amansky met her death both defendants came into the store and "appeared to be excited." The conduct and appearance of the defendants, after the crime had been committed, was competent as bearing upon their guilt. Commonwealth v. Piper, 120 Mass. 185, 189. Commonwealth v. Trefethen, 157 Mass. 180, 198.

8. A check payable to the order of G. Amansky was on the person of the murdered woman. There was testimony that the two defendants on the evening of the day the crime was committed went together to a liquor store and Borasky told Kolek that the clerk spoke the Polish language, and the former then went out on the sidewalk while the latter indorsed this check and got it cashed, and Borasky returned to the store and told his companion to hurry up, and they departed together. This testimony was competent. There was a considerable body of evidence to show a common design in their association of that day and the few days previous. Commonwealth v. Smith, 151 Mass. 491, 495. Commonwealth v. Kelly, 186 Mass. 403.

9. The ruling of the judge that there was sufficient evidence for the jury to consider whether the cashing of the check was with the knowledge and approval of Borasky and for the joint benefit of both defendants was proper. Commonwealth v. Rogers, 181 Mass. 184, 193.

10. The testimony of the witness Dickinson that coming suddenly upon Borasky, while counting money a day or two after the day of the murder, he acted "kind o' sneaky about it" was also competent. It was responsive to the question. It was not the statement of an inference or conclusion, but rather a description of conduct. Gorham v. Moor, 197 Mass. 522. As such it had probative force.

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11. A witness testified to a narration, made by Kolek at the time of his arrest, of his connection with the killing which was in the nature of an admission or confession. His statement was in effect that whatever part he took was under the compulsion of the defendant Borasky. Treating the defendant's exception to the admission of this evidence as seasonably taken, it must be overruled. The judge carefully cautioned and instructed the jury that it was to be considered against Kolek alone, and not in the slightest degree against Borasky. This protected his rights. The reasons have been discussed fully under the first part of this opinion.

12. A court record showing the conviction of one Michael Croski was introduced in evidence without objection. The defendant Borasky, who testified in his own behalf, was asked by counsel for Kolek if he was "the Michael Croski . . . who was convicted for assault with a dangerous weapon on October 12, 1908, and committed to York Street to the House of Correction." The record showed the conviction and a fine of $30, and commitment to the House of Correction. The question was objected to on the ground that it did not embrace the words stated in the complaint and sentence. This was not an attempt to prove conviction without the record, but merely identification of the witness with the one named in the record already in evidence. Exact precision was not required. in such a question. It was enough if the description fairly called the attention of the witness to the record. Plainly it did. Commonwealth v. Sullivan, 150 Mass. 315. The record was admissible in evidence as affecting the credibility of Borasky as a witness.

13. The defendant's request for instructions [Note p320-Star] was refused rightly. There was ample evidence (which it is not necessary to narrate) of deliberately premeditated malice aforethought on the part of the defendant Borasky apart from the testimony of Tar-

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vinsky. The defendant could not single out one piece of evidence bearing upon the subject, and as matter of right ask an instruction on it. Commonwealth v. Adams, 186 Mass. 101. The judge gave full and accurate instructions as to the bias of the witness and the effect it might have upon his testimony if found to exist. The rights of the defendant Borasky were protected fully in this regard.

14. The defendant Borasky filed a motion for a new trial directly after the return of the verdict. One ground related to an incident which occurred when the jury had returned to the court room after the charge for the purpose of having portions of the evidence read to them. At the conclusion of this reading, one juror said, "I would like to ask you a question." To this the judge replied, "You had better communicate through the foreman in writing, and if you find you need it, send it down and I will ask you to come down again. . . Don't hesitate, . . . I don't mean, gentlemen, to check your questions, not a particle." No objection, request, or suggestion was made to the judge touching this at the time. This was the time for making objection, and no right of the defendant was invaded if he failed to act then. Commonwealth v. Morrison, 134 Mass. 189. Loveland v. Rand, 200 Mass. 142. But treating the question on its merits, it was not ground for a new trial, and the conduct of the judge is not open to criticism. It was correct practice. The foreman is the mouthpiece of the jury. Burke v. Hodge, 211 Mass. 156, 161. The orderly conduct of trials requires that questions commonly should be presented through the foreman, and not by each juror according to his own inclination. Very much must be left to the discretion of the presiding judge. As was said by Chief Justice Shaw, in Kellogg v. French, 15 Gray 354, 357: "The situation is a delicate one. The jurors are presumed to have discussed the case, and to have formed or be on the point of forming opinions. Any further discussion, either of the evidence or the law, in presence of the jury, might be eminently prejudicial."

15. The defendant Borasky filed a second motion for a new trial based upon newly discovered evidence. The substance of this motion was that Kolek, the other defendant, had died since the trial and an autopsy performed on his body showed such a diseased condition of his brain as rendered his testimony given at the trial

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unworthy of belief. There was a further allegation that the evidence of other witnesses was not sufficient to warrant a verdict against him. This motion was supported by an affidavit signed by four physicians, to the effect that they had taken part in an autopsy on the body of Kolek, and that his brain was diseased, and had been for many years, and at the end there was a fatal disintegration of brain substance, and concluded in these words: "Evidence of the final organic process which terminated life made itself clearly manifest on the day that the jury returned its verdict. Whether the process developed acutely or had been coming on for some time we are unable to say. Such a brain disease means a modified mentality. Statements made by the said Kolek at any time might be reliable or unreliable." The granting of a new trial on the ground of newly discovered evidence rests on sound judicial discretion, both in criminal and civil cases. Commonwealth v. Green, 17 Mass. 515, 535. Commonwealth v. Ruisseau, 140 Mass. 363. Powers v. Bergman, 210 Mass. 346. There is nothing to show that such discretion was not exercised wisely in the present case. The affidavit of the physicians went no further than to show that facts revealed by the post mortem examination of Kolek might or might not have affected his testimony. There is nothing in the record to indicate the experience of the affiants in that branch of medicine, nor how far they were capable of determining the mental condition of the deceased at the time he gave his testimony. Attaching full weight to the supporting affidavit, it cannot be said to throw greater probability on one side than on the other. The judge who passed upon the motion saw the witness upon the stand, and had full opportunity to observe whether he showed any symptoms of unreliability in giving his testimony. His manner and appearance together with what he said and all the other circumstances were for the consideration of the judge in reaching a conclusion.

Exceptions overruled.