Com. v. Crowley
| Decision Date | 27 February 1897 |
| Citation | 46 N.E. 415,168 Mass. 121 |
| Parties | COMMONWEALTH v. CROWLEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John D. McLaughlin, 2d Asst. Dist. Atty., for the Commonwealth.
William H. Baker, for defendant.
The objection most relied on relates to the exclusion of the evidence of Mr. Bennett. At the beginning of the trial, the presiding judge had passed an order, at the defendant's request, excluding the witnesses on both sides from the court room. There was no exception in favor of Mr. Bennett, or of any class of witnesses; and Mr. Bennett did not withdraw, but remained in court, taking notes of the testimony, as an assistant to the defendant's counsel. He had also taken notes at a former trial of this case; and he was now called as a witness, for the purpose of contradicting a witness for the government, by testifying that the latter's testimony on material points at the former trial had been different from that given on the present trial. The defendant's counsel stated to the court that, when the witnesses were excluded from the court room, he did not know that it would be necessary to call Mr. Bennett, and that he had excluded all the witnesses at the time of the beginning of the trial that he intended to call, and did not then know that he would be obliged to call any witnesses for the purpose of rebutting the testimony of a government witness. The bill of exceptions, however, goes on to recite that the trial lasted for 21/2 days, the larger part of which was occupied by the government in putting in its case; that several of the government witnesses were inquired of by the defendant's counsel if they had not testified at the previous trial differently from what they testified at this; and that the counsel, when putting these questions, apparently read from the notes of the previous trial, stating especially in each question facts at variance with those last testified to. From this recital we infer that the court thought that the defendant's counsel was in fault, after having procured the order of exclusion of the witnesses, in not causing Mr Bennett to withdraw during the progress of the trial, and as soon as the idea occurred to him of contradicting any of the government witnesses by calling Mr. Bennett, with his notes of their former testimony. Although, in fact, Mr. Bennett was only offered to contradict a single witness, the cross-examination of several of the government witnesses indicated that the counsel might have it in mind to call him as to their testimony also. The facts recited in the bill of exceptions warranted the judge in thinking the defendant's counsel was in fault, and therefore the question of law which is presented for our determination is whether, on this assumption, he might lawfully exclude Mr Bennett's testimony. We are not called upon to determine what the rule should be in a case where the party himself and his counsel are free from fault.
Under the circumstances stated, we are of opinion that it was within the discretion of the court to exclude the testimony. In Holder v. U.S., 150 U.S. 91, 14 Sup.Ct. 10, it is said: "The right to exclude under particular circumstances may be supported as within the sound discretion of the trial court." This right, where the party or his counsel has been in fault, is, directly or by implication supported by various decisions, and sanctioned by text writers. State v. Gesell, 124 Mo. 531, 27 S.W. 1101; O'Bryan v. Allen, 95 Mo. 68, 75, 8 S.W. 225; Dyer v. Morris, 4 Mo. 214; State v. Thomas, 111 Ind. 575, 13 N.E. 35; Burk v. Andis, 98 Ind. 59, 64; Davis v. Byrd, 94 Ind. 525; Jackson v. State, 14 Ind. 327; Bird v. State, 50 Ga. 585; Hey v. Com., 32 Grat. 946, 949; Hubbard v. Hubbard, 7 Or. 42; 1 Bish.Cr.Proc....
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