This is an appeal from a judgment entered by a single justice of the Supreme Judicial Court dismissing a petition for a writ of error seeking reversal of judgments of the Superior Court after trial of two indictments charging Salemme with assault, being armed with a dangerous weapon, with intent to murder (G.L.c. 265, § 18), and assault and battery by means of a dangerous weapon (G.L.c. 265, § 15A). Verdicts of guilty as to both indictments had been returned by a jury, and Salemme was sentenced to a term of imprisonment of nineteen to twenty years on the charge of armed assault with intent to murder and to a consecutive term of imprisonment for nine to ten years on the charge of the assault and battery with a dangerous weapon.
Before the single justice of this court the writ issued as prayed for in the petition. After the issuance of the writ the single justice, after hearing, dismissed the petition on the Commonwealth's motion. Salemme appealed. In our view the only issues properly before us are those which assert constitutional errors by alleging double jeopardy in trying Salemme on the two indictments arising out of a single act, and in imposing consecutive sentences after verdicts of guilty on these indictments.
Other errors now argued by Salemme are not properly before us. He asserts that certain testimony was erroneously admitted at the trial of the indictments. This contention, which raises no constitutional issue, was raised on appeal and was rejected by the Appeals Court (Commonwealth v. Salemme, 3 Mass.App.Ct. 102, 106-107 (1975), and this court subsequently denied Salemme's application for further appellate review. Salemme cannot seek another review of the issue by means of a writ of error.
We turn now to the single issue before us: that of double jeopardy. More specifically, Salemme argues, correctly, that the Fifth Amendment to the Constitution of the United States protects against multiple punishments for the same offense. Gallinaro v. Commonwealth, 362 Mass. 728, 735 (1973). United States v. Wilson, 420 U.S. 332, 344 (1975). North Carolina v. Pearce, 395 U.S. 711, 717 (1969). He further states that the imposition of consecutive sentences as to the two offenses charged here was such a double punishment.
It is clear that both offenses arose out of a single transaction.
On the other hand, proof of the indictment charging assault and battery by means of a dangerous weapon required a showing that a battery had been committed, in other words, that intentional force was applied against the victim, and that it was applied by means of the dangerous weapon. See Commonwealth v. McCan, 277 Mass. 199, 203 (1931).
Thus each indictment required proof of at least one fact not required for proof of the other indictment. Proof of battery was required in one; proof of intent to murder was required in the other. Consecutive sentences were properly imposed. We add, although the comment is not relevant to any issue raised in the case, that the heinous nature of Salemme's conduct was certainly such as to warrant, in justice, multiple indictments and consecutive sentences.