Com. v. McConnell

• Citation: 39 N.E. 107,162 Mass. 499
• Parties: COMMONWEALTH v. MCCONNELL.
• Decision Date: 01 January 1895
• Court: United States State Supreme Judicial Court of Massachusetts

162 Mass. 499

39 N.E. 107

COMMONWEALTH v. MCCONNELL.

Supreme Judicial Court of Massachusetts, Suffolk.

January 1, 1895

COUNSEL

M.F. Sughrue, Second Asst. Dist. Atty., for the Commonwealth.

J.E Bates, for defendant.

OPINION

BARKER, J.

The defendant was tried upon an indictment charging him with the offense of receiving stolen goods, and was defended by counsel. After the close of the evidence for the prosecution the defendant's wife and one Sullivan were sworn as witnesses for the defense, and his counsel then stated to the court that the defendant did not wish to testify, but wished to make a statement to the jury before the introduction of the testimony of his witnesses, and said that the testimony of the wife would be better understood and appreciated by the jury after the defendant's personal statement. The counsel then moved that the defendant might be allowed to make his own statement at the outset, and as prefatory to the testimony to be submitted in his behalf. This motion was denied, and the court required the defendant to submit all testimony in his behalf before allowing the defendant himself to make any statement, and the defendant excepted. After the wife and another witness had testified for the defendant, he commenced to make a statement to the jury, when the district attorney interrupted, saying that he wished to call witnesses in rebuttal of the wife's testimony; and he was allowed to recall a witness who contradicted certain material evidence given in the defendant's favor by his wife. The defendant was then allowed to make a statement to the jury, after which the case was argued to them by his counsel. The district attorney, in his closing argument, began to explain to the jury the difference between the statement of the defendant and testimony, in that the prosecution had no opportunity to cross-examine the defendant. To this observation the defendant excepted; whereupon the district attorney ceased to remark upon the subject, withdrew what he had said in reference to it, and asked the jury not to consider what he had said; and no further allusion was made thereto. The defendant now contends that he had an absolute right to make the unsworn statement as a part of his defense, and to introduce it as prefatory to the testimony of the other witnesses in his behalf, and that it was error for the court to compel him to postpone, and to subordinate his personal statement to the testimony of the other witnesses, and to allow an interruption of his statement by the interpolation of evidence in contradiction of his witnesses; and also that the comment of the district attorney was a serious error which, in the absence of appropriate instructions from the court, was not cured by the withdrawal of the remarks. There was another exception, to the refusal of the court to strike out such of the testimony as related to articles included among the stolen goods, and not produced at the trial; but this exception was not argued upon the defendant's brief and is waived.

It is evident from the statement of the case that the trial was in several respects irregularly conducted, but we find no error prejudicial to the defendant, and his exceptions must be overruled. He relies upon the following cases: Rex v O'Coigly, 26 How. State Tr. 1374; Rex v. Watson, 32 How. State Tr. 20, 538; Rex v. Thistlewood, 33 How. State Tr. 894; Reg. v. Beard, 8 Car. & P. 142; Reg. v. Butcher, 2 Moody & R. 229; Reg. v. Malings, 8 Car. & P. 242; Reg. v. Manzano, 2 Fost. & F. 64. But in none of the cases, nor elsewhere in the law, is there authority for the position that a defendant who has the right to testify in his own defense, if he chooses, and who is defended by counsel, has an absolute right to make an unsworn assertion of facts as a part of his defense, and to introduce it as prefatory to the testimony of witnesses on his behalf. On the contrary, it is fairly to be deduced from the cases cited, and it is the settled and correct practice here, that, save in capital cases, a person upon trial for crime who is defended by counsel has no absolute right to make a part of his defense any unsworn statement as a statement of fact. In prosecutions for high treason in England, and for murder in this commonwealth, it has been the practice to allow the prisoner, at some stage of the trial, to make to the jury such a statement as he might choose. But in trials for treason, in England, the proper time for the statement was not only after the conclusion of the evidence, but after the argument of his own counsel. See Rex v. Watson, 32 How. State Tr. 538, where Lord Ellenborough said to the prisoner, after the argument of his counsel: "Mr. Watson, I am to inform you that, if you wish to address any observations to the jury, this is the time for you to do so; but you must not after the counsel for the crown has replied." See, also, Rex v. Thistlewood, 33 How. State Tr. 894, in which, at the same stage of the trial, Lord Chief Justice Abbott said: "Arthur Thistlewood, if you wish to offer anything from yourself to the gentlemen of the jury, in addition to what has been addressed to them by your learned counsel, you are at liberty to do so, and this is the...