Home JOHN J. MCCLELLAN vs. COMMONWEALTH.

362 Mass. 878

November 3, 1972

On a petition for a writ of error in the county court to review a judgment entered in 1959 on a plea of guilty to a charge of second degree murder, the judgment was affirmed, and the case is before us on the petitioner's exceptions. The single justice heard testimony, was not convinced that the petitioner was inadequately represented at his arraignment and sentence, and ruled that the plea was voluntary and that the trial judge had made a sufficient inquiry whether the petitioner had "a full understanding of what the plea connotes and of its consequence." Boykin v. Alabama, 395 U.S. 238, 243-244. The decision in the Boykin case is not retroactive. Andrews v. Commonwealth, 361 Mass. 722 , 726. The single justice found that the petitioner was sentenced "in accordance . . . with standards then prevailing." In fact the transcript shows that the prosecutor, before the petitioner pleaded guilty, represented to the court that the defendant had admitted to a witness present in court that "he shot the victim twice" and that a medical report showed that "the victim was shot twice in the chest, thereby dying almost instantly." The petitioner now contends that the plea was involuntary, that he was not adequately represented by counsel, and that he has been prejudiced by the delay of the Commonwealth in furnishing him a transcript of the proceeding in which he pleaded guilty. The first two contentions rest primarily on testimony of the petitioner which the single justice was not bound to accept and did not. The transcript argument rests entirely on the finding of the single justice that it is a matter of conjecture what the prosecutor was referring to when he said that the trial judge had "heard" the sergeant in charge of the case. He saw no prejudice, nor do we.

Exceptions overruled.

Home ARMOUR & COMPANY, INC. vs. ROYAL INDEMNITY COMPANY (and a companion case).

362 Mass. 878

November 3, 1972

By a bill of exceptions in one case and an appeal in the other, Armour & Company, Inc. (Armour), brings to us the question whether the trial judge correctly ruled that Armour has no rights on a bond given by a surety and two individual principals to vacate a judgment by default. The judgment was entered for Armour against the individual principals and a corporation in February, 1969. The bond was filed on December 12, 1969, and the next day the judgment was vacated as to the individual principals only. Later, by agreement of all parties, the judgment was vacated as to the corporation, which never filed a bond. Still later, after trial,

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there was a finding for the individual defendants and a finding for Armour against the corporation. In May, 1970, execution was issued against the corporation, and these cases followed. The cases are governed by Sands, Taylor & Wood Co. v. American Ins. Co. 349 Mass. 477 , 478. As we said in the Sands case, G. L. c. 250, Section 17, "so describes the condition of the required bond as to show that it is only a judgment against the petitioner, the `obligor' on the bond, with which the bond is concerned." It is immaterial that an additional ground of that decision, that under the statute the bond was limited to an execution "`on any judgment thereafter rendered in said action'" (id. at 479), -- i.e., on a judgment rendered after the default judgment is vacated, -- does not apply to the present cases. Although the default judgment against the corporation was later vacated and a judgment against the corporation was "thereafter rendered," at the time the bond was given the corporation was "a stranger to the proceedings to vacate judgment" (id. at 479).

Exceptions overruled.

Decree affirmed with costs of appeal.