PETER W. MAKAREWICZ vs. COMMONWEALTH.

KIRK, J. Peter W. Makarewicz in this petition for a writ of error contends that his sentence to life imprisonment, imposed by a judge of the Superior Court, was an illegal sentence because the Superior Court, at the time sentence was imposed, had lost jurisdiction of the case. The case was heard by the single justice on the petition, the assignment of errors, and the answer of the Commonwealth which admitted certain allegations of fact but denied error. The single justice affirmed the judgment. In his order he stated pertinent facts of record and made rulings to which the petitioner has excepted.

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The contention and argument on behalf of Makarewicz stem mainly from his conception of our holding in Metcalf v. Commonwealth, 338 Mass. 648. See also D'Urbano v. Commonwealth, 345 Mass. 466. We make a comparative analysis of the undisputed facts in the present case and in the Metcalf case in order to point up the issue which is here presented. We indicate first the points of similarity between the two cases. In this case, as in the Metcalf case, one of the applicable statutes was G. L. c. 119, Section 52, which defined "delinquent child" as "a child between seven and seventeen who violates any city ordinance or town by-law or commits an offence not punishable by death." [Note 1] In this case, as in the Metcalf case, the petitioner was, at the time of his offence, at the time of his indictment, and at the time of sentence, between seven and seventeen years of age. In this case, as in the Metcalf case, at all relevant times G. L. c. 119, Section 74, was applicable, and it provided, "Criminal proceedings shall not be begun against any child between fourteen and seventeen years of age, except for offences punishable by death, unless proceedings against him as a delinquent child have been begun and dismissed as required by section sixty-one." [Note 2] In this case, as in the Metcalf case, criminal proceedings were begun when the petitioner was between fourteen and seventeen years of age. [Note 3] In this case, as in the Metcalf case, the charge was murder in the first degree. In this case, as in the Metcalf case, the petitioner was not afforded a hearing at any time before a juvenile session of any court. Here the points of similarity end.

We now cite the points of difference in the facts of record and discuss the consequences which follow from them. In the Metcalf case, the judge accepted Metcalf's plea of guilty

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to so much of the indictment as charged murder in the second degree. Metcalf was thereupon sentenced to life imprisonment. Upon consideration of Metcalf's petition for a writ of error this court held that by the acceptance of his plea it became established that the offence which he had committed was one which was not punishable by death, and that accordingly, under G. L. c. 119, Sections 52, 74, the Superior Court was without jurisdiction to impose sentence upon him. The judgment was reversed, and thereafter juvenile offender proceedings were followed.

In the case before us, however, following a plea of not guilty to the indictment charging him with murder in the first degree, Makarewicz was tried before a jury who returned a verdict of guilty of murder in the first degree with a recommendation that the death penalty be not imposed. [Note 4] The argument of the petitioner appears to be that the jury by their verdict foreclosed the punishment of death with the result that, as in the Metcalf case, the Superior Court was without power to impose the sentence of life imprisonment. We are not persuaded. In the Metcalf case, the decisive fact was that the offence of which Metcalf stood convicted by his accepted plea subjected him to the mandatory sentence of life imprisonment. G. L. c. 265, Section 2. The substantive crime thereby defined, murder in the second degree, was "an offence not punishable by death." Here, in contrast, the decisive fact is that the jury's verdict established and defined the substantive crime which Makarewicz had committed as murder in the first degree which is an offence punishable by death. G. L. c. 265, Section 2. "Punishable" means liable to punishment. A statutory provision which refers to crimes as punishable by death or as punishable by life imprisonment describes, respectively, a class of crimes identified by the punishment to which they make the perpetrator liable. Their character is determined by that

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test and does not at all depend upon the sentence which may be pronounced. Commonwealth v. Pemberton, 118 Mass. 36, 42, 43. See Commonwealth v. McNeil, 328 Mass. 436, 441-442. The recommendation of the jury pursuant to G. L. c. 265, Section 2, as amended by St. 1951, c. 203, did not change the class to which the substantive crime belonged. It did not lessen the gravity of the crime or alter its essential nature. It was limited solely to the punishment which could be imposed in the particular case.

This conclusion has substantial support elsewhere. In Fitzpatrick v. United States, 178 U.S. 304, 306-307, where the Supreme Court of the United States on a writ of error reviewed a judgment on a verdict of guilty of murder "without capital punishment," it was said, "It is clear, however, that, as . . . [the statute] inflicts the penalty of death for murder, the power given the jury by the . . . [amendment] to qualify the verdict of guilty by adding the words `without capital punishment,' does not make the crime of murder anything less than a capital offence, or a conviction for murder anything less than a conviction for a capital crime, by reason of the fact that the punishment actually imposed is imprisonment for life. The test is not the punishment which is imposed, but that which may be imposed under the statute. . . . A conviction for murder, punishable with death, is not the less a conviction for a capital crime by reason of the fact that the jury, in a particular case, qualifies the punishment." See, to the same effect, Stroud v. United States, 251 U.S. 15, 18, and Stroud v. United States, 283 F. 2d 137, 139 (10th Cir.), citing Fitzpatrick v. United States, 178 U.S. 304.

We rule that the recommendation of the jury did not cause the Superior Court under the provisions of G. L. c. 119, Section 52, to lose the jurisdiction which it had properly assumed under G. L. c. 119, Section 74. The sentence was legally imposed.

The petitioner cites several cases in which we considered our power to review "a capital case" under G. L. c. 278, Section 33E, as amended by St. 1939, c. 341, Commonwealth v.

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Coggins, 324 Mass. 552, Commonwealth v. Cox, 327 Mass. 609, 614, Commonwealth v. Vaughn, 329 Mass. 333, 339-340, and as further amended by St. 1962, c. 453, Commonwealth v. Baker, ante, 107, 108-109. It is sufficient to say that neither the statute nor the cases cited have any bearing on the issue before us.

The order of the single justice was right.

Exceptions overruled.