Commonwealth v. Twombly

66 N.E.2d 362, 319 Mass. 464, 1946 Mass. LEXIS 630

• Court: Massachusetts Supreme Judicial Court
• Decided: May 1, 1946
• Status: Published

Opinion

Qua, J.

At the trial in the Superior Court of a complaint against the defendant for being an idle and disorderly person (G. L. [Ter. Ed.] c. 272, § 53, as appearing in St. 1943, c. 377), a policewoman was allowed to testify that she had a conversation with one Mary Paradíseo in the defendant’s presence, the defendant not then being under arrest, in which Mary Paradisco said that early that morning she and the defendant, with two service men, had engaged a room with twin beds at a hotel, that she (Mary Paradíseo) and one of the service men had occupied one bed, and the defendant and the other service man had occupied the other bed, and that each of the women had relations with the man she was with. The witness then testified that after Mary Paradíseo made these statements “she” (apparently meaning the witness) “turned to the defendant and asked her what she had to say and that the defendant denied the statement and said that it was not true.” The evidence as to what Mary Paradisco said was admitted and allowed to stand over the exception of the defendant. Mary Paradíseo did not testify at the trial.

There was error. If the defendant, not being under arrest, had refused to speak when' a denial of some kind would naturally be expected from an innocent person, or if she had made an equivocal answer, the evidence would have carried something of the flavor of an admission and would have been competent. Commonwealth v. Kenney, 12 Met. 235. Commonwealth v. Spiropoulos, 208 Mass. 71, 74. Commonwealth v. Gangi, 243 Mass. 341. Commonwealth v. Biggs, 293 Mass. 235, 236. Commonwealth v. Cheng, 310 Mass. 293, 297. Commonwealth v. Boris, 317 Mass. 309, 317. But a flat denial was in no sense an admission. It left the alleged statements of Mary Paradíseo nothing but incompetent hearsay. Fitzgerald v. Williams, 148 Mass. 462, 467. Commonwealth v. Trefethen, 157 Mass. 180, 197. Commonwealth v. Kosior, 280 Mass. 418, 422-423. Commonwealth v. Polian, 288 Mass. 494, 496. Commonwealth v. Green, 302 Mass. 547, 551. See Commonwealth v. Anderson, 220 Mass. 142.

They were not rendered competent by evidence later in the trial that upon being arrested the defendant said that “if she received probation she would accept it but that otherwise she would fight it to the end.” If this can be treated as in .the nature of an admission, yet.it does not appear that this was part of, or in any way related to, the conversation in which the defendant had made her unqualified denial of having had relations with the service man. See Commonwealth v. Trefethen, 157 Mass. 180, 200; Commonwealth v. Russell, 160 Mass. 8, 10; Commonwealth v. Chance, 174 Mass. 245, 248-249; Commonwealth v. Keyes, 11 Gray, 323.

The incompetent evidence was of a highly prejudicial character and may have influenced the verdict against the defendant.

Exceptions sustained.