Com. v. Devaney

• Decision Date: 18 June 1902
• Citation: 182 Mass. 33,64 N.E. 402
• Parties: COMMONWEALTH v. DEVANEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

182 Mass. 33

64 N.E. 402

COMMONWEALTH v. DEVANEY.

Supreme Judicial Court of Massachusetts, Suffolk.

June 18, 1902

COUNSEL

John D. McLaughlin, for the Commonwealth.

James A. McGeough, for defendant.

OPINION

LATHROP J.

The defendant, Devaney, was jointly indicted with one Haley for the robbery of $180 from one Galant. Haley was not arrested and Devaney was tried alone. He was found guilty, and the case is before us on certain exceptions to the admission of evidence and to the instructions of the court. We will consider these in their order.

1. The first exception relates to the admission in evidence of conversations between the defendant and certain police officers, after the defendant's arrest. There was no evidence that any threats or promises were made, and the only objection made at the trial was that the defendant was under arrest. This was no ground of objection, and it moreover appears that the defendant had been cautioned that what he would say might be used for or against him in court. Com v. Cuffee, 108 Mass. 285; Com. v. Sego, 125 Mass. 210; Com. v. Preece, 140 Mass. 276, 5 N.E 494; Com. v. Myers, 160 Mass. 530, 36 N.E. 481; Com. v. Robinson, 165 Mass. 426, 43 N.E. 121; Com. v. Wesley, 166 Mass. 248, 44 N.E. 228; Com. v. Williams, 171 Mass. 461, 50 N.E. 1035; Com. v. Storti, 177 Mass. 339, 343, 58 N.E. 1021.

2. The robbery was on Saturday evening, and there was evidence that the defendant and one other person were engaged in it. The government contended that this other person was Haley. The defendant knew Haley, and admitted meeting him that evening. There was evidence admitted without objection that Haley two weeks before the robbery had no money. The defendant objected to the admission of evidence that, on the Monday evening after the robbery, Haley was in a barroom displaying considerable money and treating and paying for drinks. The bill of exceptions does not purport to state all the evidence bearing upon Haley's complicity in the crime. If he had been on trial, the fact that he had recently come into possession of money would have been competent, whatever its weight might have been. Com. v. O'Neil, 169 Mass. 394, 48 N.E. 134; Com. v. Williams, 171 Mass. 461, 50 N.E. 1035. If he were an accomplice, the evidence was competent against the defendant. Com. v. Billings, 167 Mass. 283, 45 N.E. 910. The jury were specially instructed that, before considering the testimony as to Haley, they must first be satisfied that he was one of the men who committed the robbery and was an accomplice of the defendant; that if they did not find Haley to be an accomplice they should reject and not consider the testimony in relation to him, but if they did find that he was the defendant's accomplice they might consider it as bearing upon the defendant's guilt. There is nothing to show that the evidence was not admissible.

3. Galant identified the defendant as one of the men who robbed him. Lyons, a stable keeper, from whom the defendant hired a horse and coupé, was a witness for the government. On cross-examination he testified that Galant identified him, Lyons, as the driver of the coupé and as one of the men who robbed him. To meet this evidence, the government was allowed to show by a police officer who was present at the time that Galant did not say that Lyons was the driver or one of the robbers. The government was not bound by the testimony of Lyons as to any particular fact, and might show that the fact was otherwise. Brolley v. Lapham, 13 Gray, 294; Whitney v. Railroad Co., 9 Allen, 364; Com. v. Burrough, 162 Mass. 513, 39 N.E. 184.

4. The remaining exception relates to a portion of the judge's charge. The defendant, after his arrest, asserted that on the night of the robbery he drove a dark horse. He also denied that he had ever seen Galant before he was confronted with him. Subsequently he admitted having driven Galant on the night of the robbery in a coupé drawn by a gray horse. The jury were instructed that, if they should find that the defendant intentionally misstated material facts, they would have a right to take such misstatements as admissions of guilt. There can be no doubt that the statements made by the defendant were material and that they were false. If they were intentionally false, they tended to show the guilt of the accused. He testified that he knew at the time that Galant and the police officer were in search...