Commonwealth v. Britland

15 N.E.2d 657, 300 Mass. 492, 118 A.L.R. 132, 1938 Mass. LEXIS 950
CourtMassachusetts Supreme Judicial Court
DecidedJune 15, 1938
StatusPublished
Cited by22 cases

This text of 15 N.E.2d 657 (Commonwealth v. Britland) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Britland, 15 N.E.2d 657, 300 Mass. 492, 118 A.L.R. 132, 1938 Mass. LEXIS 950 (Mass. 1938).

Opinion

Dolan, J.

The defendant was tried at one time under two indictments, one charging him with being an accessory before the fact to the crime of armed robbery, and the other with being an accessory after the fact to the same crime. He pleaded not guilty to each indictment. The jury returned a verdict of not guilty on the first indictment and a verdict of guilty on the second indictment. The robbery took place on April 9, 1936, in the city of Fall River, and it appeared in evidence that the principals involved were Vernon Boitano and James Connors. The former had disappeared and the latter had pleaded guilty as a principal and had been sentenced at the time of the trial of the defendant. The case comes before us by appeal under the provisions of G. L. (Ter. Ed.) c. 278, §§ 33A-33G, with a summary of the record, a transcript of the evidence and assignments of error.

Twenty-two of the defendant’s twenty-four assignments of error are based on forty-three exceptions taken by him during the course of the trial. Exceptions 1, 9, 10, 11 and 18 may be grouped since they are all exceptions to the exclusion of questions asked on cross-examination by the defendant’s attorney and the same fundamental question is involved in the determination of whether the judge erred in excluding them.

The prosecution called Joseph Andrews, a police officer of the Fall River police department, who testified at length to conversations had by him with the defendant in the presence of other police officers after the defendant’s arrest on the second day following the robbery. In direct examination Andrews testified to statements by the defendant from which it appeared that the latter admitted driving an automobile for the principals concerned in the robbery and parking it at a designated place shortly before the robbery occurred, at the request of one of them (Boitano). The witness also testified in direct examination to statements made by the defendant relating to his meeting [494]*494with Boitano after the robbery had taken place, of his visit to Boitano’s home on the evening of the day the robbery was committed, of his conduct there in connection with the destruction or throwing away of a "revolver” at the request of Boitano’s father, and of his subsequent conduct in his relations with the principals preceding his arrest. Exceptions 1, 9, 10 and 11 were taken to the exclusion of questions asked of this witness on cross-examination. Exception 18 was taken to the exclusion of a question proposed in the cross-examination of another police officer, who was called by the prosecution and who testified to substantially the same conversations as had been given in evidence by the witness Andrews. The defendant’s defences were that when he drove the automobile and parked it at the request of Boitano he did not know that a crime was to be committed and that thereafter in all that he did, he did not know that the principals had actually committed the robbery.

Exception 1. During the cross-examination of Andrews the defendant’s attorney asked him whether, in the course of the conversation with the defendant which the witness had testified to in direct examination, the defendant told him “that Boitano asked him to go to . . . [a certain house] on Highland Avenue . . . and there help him to deliver a box■ of oranges.” Upon objection the question was excluded and the defendant excepted. The obvious purpose of this question, read in the light of the record, was to show that the defendant’s association with the principals on the morning of the day on which the robbery occurred and preceding its commission was natural and innocent.

Exception 9. The witness Andrews was asked by the defendant’s counsel whether the defendant stated to him that, when he got there (to the home of Boitano’s father on the evening of the day of the robbery), Mr. Boitano "was very angry because he found a revolver.” The witness answered, "Yes, sir.” He was then asked whether the defendant stated to him that at that time Boitano, senior, asked Boitano (one of the principals) "where he got this [495]*495gun.” The prosecuting attorney objected, and the question was excluded, the judge ruling, in response to the request of the defendant’s counsel to save his exception, that' “Any self-serving statements that you seek to put in are absolutely incompetent.”

Exception 10. The witness Andrews was asked by the defendant’s counsel: “At the time that you talked with Britland did he tell you that on the occasion of his driving the car he didn’t know they [meaning Boitano and Connors] were going to hold up the mill?” Upon objection the question was excluded and the defendant’s exception was saved.

Exception 11. Andrews was then asked by the defendant’s counsel: “Did you ask him [the defendant] what he wore that day?” and the witness replied, “I did, sir.” He was then asked, “What did he say he was wearing?” Upon objection the question was excluded and the defendant excepted.

Exception 18. Thomas Hutchins, a police inspector of the Fall River police department, was called as a witness by the prosecution and also testified as to the conversations which had been testified to by Andrews. He was present when they took place. On cross-examination he was asked by the defendant’s counsel, “Is it true that during the entire conversation that you had with Britland that he denied on all occasions that he had any knowledge of Boitano going to commit this robbery?” The question was excluded subject to the defendant’s exception.

The record discloses that the questions to which the above mentioned exceptions relate were excluded on the ground either that they were not asked to contradict the witness or that they were self-serving. While it has been held that in a criminal case a defendant has no right to introduce in evidence self-serving statements (see Commonwealth v. Clark, 14 Gray, 367, 373; Commonwealth v. Cantor, 253 Mass. 509, 512, 513) yet where, as in the instant case, the prosecution introduces statements of the defendant, tending to show that he is guilty, it is settled that he may on cross-examination elicit from the witnesses for the prosecution the [496]*496whole of the subject matter, even though statements so drawn out are favorable to him. In Commonwealth v. Goddard, 14 Gray, 402, at page 404, the court said: “No principle is more familiar than that if one party puts in evidence a part of the admissions or conversations of the other, the latter is entitled to produce, or draw out by cross-examination, testimony concerning all that was said upon the occasion referred to. This is essential to render the part produced in evidence intelligible. The force and effect of particular expressions may be, and often are, greatly modified or affected by the connection in which they are uttered.” See also Commonwealth v. Keyes, 11 Gray, 323, 324, 325; Commonwealth v. Trefethen, 157 Mass. 180, 187. The obvious purpose of the questions which were excluded was to bring out the whole conversation and to elicit evidence favorable to the defendant. They related to the same subject matter as the conversations to which the witnesses for the prosecution had testified in direct examination.

We think that the contention of the Commonwealth that the exclusion of these questions was harmless, because the defendant later testified himself as to the statements made in his conversations with the police officers, which he was not permitted to draw from them in cross-examination, cannot be sustained.

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Bluebook (online)
15 N.E.2d 657, 300 Mass. 492, 118 A.L.R. 132, 1938 Mass. LEXIS 950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-britland-mass-1938.