Commonwealth v. Kennedy

Massachusetts Supreme Judicial Court

Commonwealth v. Kennedy

135 Mass. 543, 1883 Mass. LEXIS 130

CourtMassachusetts Supreme Judicial Court

DecidedOctober 19, 1883

StatusPublished

Cited by3 cases

This text of 135 Mass. 543 (Commonwealth v. Kennedy) 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. Kennedy, 135 Mass. 543, 1883 Mass. LEXIS 130 (Mass. 1883).

Pincite

Opinion

Colburn, J.

The testimony of McQueen as to the confession of the defendant appears to have been admitted without objection, and apparently no objection was made to its admission until the evidence in the case on both sides was closed; and it does not appear that anything was disclosed in the case which tended to render the confession inadmissible, which was not known at the time the testimony was given.

At the close of all the evidence in the case, we do not think the defendant was entitled, as of right, to request, for the first time, an instruction to the jury that they should not consider the confession, and to except if the instruction was refused, though he was entitled to have the jury instructed as to the rules of law governing the admission of confessions, and the grounds upon which they should disregard or might consider them. But as it does not appear that the request was refused for the reason that it was unseasonable, we prefer not to decide the case upon that ground.

We do not think it was so apparent that the confession was probably induced by any fear of personal injury, or hope of [545]*545personal advantage, that the court was required to instruct the jury not to consider it. Commonwealth v. Morey, 1 Gray, 461. Commonwealth v. Whittemore, 11 Gray, 201. Commonwealth v. Sego, 125 Mass. 210.

In form at least, if not in substance and effect, the officer addressed the argument to the defendant, that as they had evidence enough to bind him over, and had found one of the barrels of whiskey, and he would probably be in confinement, so that he could make no use of the other barrel, “ he had better tell him,” or “he better tell,’’ or “he might as well tell,” where it was, not because it would make any difference to him, but in order that the owner might recover it. The distinction between this case and Commonwealth v. Nott, ante, 269, is obvious.

The defendant in his brief appears to contehd that the statement made to the defendant, that they had evidence enough to bind him over, and had found one of the barrels of whiskey, was false; but the exceptions show nothing to lead us to that conclusion.

If the defendant was not entitled to the instruction asked for, the instructions given were sufficiently favorable to him.

Exceptions overruled.

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Colburn, J.

The testimony of McQueen as to the confession of the defendant appears to have been admitted without objection, and apparently no objection was made to its admission until the evidence in the case on both sides was closed; and it does not appear that anything was disclosed in the case which tended to render the confession inadmissible, which was not known at the time the testimony was given.

At the close of all the evidence in the case, we do not think the defendant was entitled, as of right, to request, for the first time, an instruction to the jury that they should not consider the confession, and to except if the instruction was refused, though he was entitled to have the jury instructed as to the rules of law governing the admission of confessions, and the grounds upon which they should disregard or might consider them. But as it does not appear that the request was refused for the reason that it was unseasonable, we prefer not to decide the case upon that ground.

We do not think it was so apparent that the confession was probably induced by any fear of personal injury, or hope of [545]*545personal advantage, that the court was required to instruct the jury not to consider it. Commonwealth v. Morey, 1 Gray, 461. Commonwealth v. Whittemore, 11 Gray, 201. Commonwealth v. Sego, 125 Mass. 210.

In form at least, if not in substance and effect, the officer addressed the argument to the defendant, that as they had evidence enough to bind him over, and had found one of the barrels of whiskey, and he would probably be in confinement, so that he could make no use of the other barrel, “ he had better tell him,” or “he better tell,’’ or “he might as well tell,” where it was, not because it would make any difference to him, but in order that the owner might recover it. The distinction between this case and Commonwealth v. Nott, ante, 269, is obvious.

The defendant in his brief appears to contehd that the statement made to the defendant, that they had evidence enough to bind him over, and had found one of the barrels of whiskey, was false; but the exceptions show nothing to lead us to that conclusion.

If the defendant was not entitled to the instruction asked for, the instructions given were sufficiently favorable to him.

Exceptions overruled.

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Bluebook (online)

135 Mass. 543, 1883 Mass. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kennedy-mass-1883.

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