Com. v. Ford

• Decision Date: 06 February 1888
• Citation: 146 Mass. 131,15 N.E. 153
• Parties: COMMONWEALTH v. FORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 131

15 N.E. 153

COMMONWEALTH v. FORD.

Supreme Judicial Court of Massachusetts, Middlesex.

February 6, 1888

COUNSEL

T. Riley, for defendant.

"The word 'crime' generally denotes an offense of a deep and atrocious dye. When the act is of an inferior degree of guilt, it is called a misdemeanor." 4 Bl.Comm. 4. This act should be construed as declaratory of the common law, except that what rendered a witness incompetent could now be given to affect his credibility only, as therein provided. It is absurd, and against all policy and humanity, that any witness, in any case, should be attacked and outraged by the introduction of a long-forgotten record; and the statute in question should not be so construed. The statute reads, "the conviction of a witness of a crime may be shown to affect his credibility;" ergo, no crime that could not possibly affect witness' credibility is competent. See 1 Greenl.Ev. § 373. If the word "crime" in this statute means any misdemeanor or offense, it covers the offense of night-walking and prostitution, and it has been decided that the commission of this offense, or "crime," is no impeachment of the credibility of a witness. Com. v. Gorham, 99 Mass. 420. Notwithstanding the decision in the case of Com. v. Bonner, 97 Mass. 587, we claim that the rule that the character of the defendant in a criminal case is not to be assailed, unless said defendant puts his character in issue, is paramount to section 19, c. 169, Pub.St., and not covered by it.

A.J. Waterman, Atty. Gen., for the Commonwealth, cites Com. v. Hall, 4 Allen, 305; Day v. Cooley, 118 Mass. 524; Townsend v. Pepperell, 99 Mass. 40; Brown v. Dean, 123 Mass. 254. See, also, Phillip's Case, 132 Mass. 233.

OPINION

BY THE COURT.

Under Pub.St. c. 169, § 19, the conviction of a witness of any crime, whether a felony or a misdemeanor, may be shown to affect his credibility. Com. v. Hall, 4 Allen, 305. It is to be presumed that proper instructions were given; and such instructions necessarily implied that the jury could not act by a majority, and that each juror must act upon his own convictions. The judge was not required to repeat these principles which every juror must have understood. Whether he should do so was within his discretion, and no exception lies to his refusal to give the further instructions at the time and in the form requested by the defendant. Exceptions overruled.