Commonwealth v. Scott

• Decision Date: 19 October 1877
• Citation: 123 Mass. 239
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Commonwealth v. Robert Scott & another

123 Mass. 239

Commonwealth v. Robert Scott & another

Supreme Court of Massachusetts

October 19, 1877

Hampshire. Indictment against Robert Scott and James Dunlap for breaking and entering the house of Laura B. Whittelsey in the night time, with intent to commit larceny therein.

At the trial in the Superior Court, before Bacon, J., after twelve jurymen had been sworn, but before the jury had been empanelled, the judge allowed the government, against the defendants' objection and exception, to peremptorily challenge one of the jurors thus sworn. During the trial the defendants excepted to the admission of certain evidence introduced by the government, and to the exclusion of certain evidence offered by them, which it is unnecessary now to state.

Neither of the defendants testified at the trial. Their counsel, in his closing argument, alluded to this fact, and to the reasons for it, and stated that the fact that they did not testify should not raise any presumption against them, and made the following remarks: "What good would the testimony of these people be in proving their innocence? If guilty, would they confess it? If innocent, they are to be proved so by other lips than theirs. I have been endeavoring to discover the real facts in this case, and have never asked Scott, or Dunlap, or Mrs. Scott about it, and have never spoken to these men, nor heard their voices except as they were challenging the jury. They could add by their word nothing for me, either for or against them. I tell you gentlemen, I never yet called a prisoner to the stand. I never have been through the farce, and I could not be here to ask that these men might have their shackles taken off and go upon the stand and declare their innocence to you. Their testimony would be utterly worthless. When Professor Webster was tried for the murder of Dr. Parkman, his two daughters went upon the stand, and delivered important testimony. The lawyers for the government asked no questions, but bowed them gracefully from the stand, because they knew that from the lips of those daughters, pleading for the life of their father, no testimony could come that would weigh with the jurors. And so, gentlemen, as I said before, I could not have these men unshackled to protest their innocence to you. If they went on the stand, what could they do but deny the testimony of Edson, that he met them on Lexington Avenue and 50th Street, or Madison Avenue, at Red Leary's, and Fort Hamilton, or that they came here?"

The prosecuting attorney, in his closing argument, was proceeding to discuss these reasons and to argue that other reasons than those suggested were the real reasons for not calling the defendants and Mrs. Scott as witnesses, when the counsel for the defendants interrupted, and asked the judge to rule that the fact that the defendants did not testify could not be commented on by the government. But the judge, "having first stated the law that the fact that the defendants did not testify did not create any presumption against them ruled that, inasmuch as the matter had been referred to by the defendants' counsel, the prosecuting attorney had a right to comment on the reasons which the defendants' attorney gave for their not going upon the stand and testifying in their behalf, and also to give the reasons which the government contended really existed for their not...