Com. v. McLellan
| Decision Date | 03 November 1966 |
| Citation | 220 N.E.2d 819,351 Mass. 335 |
| Parties | COMMONWEALTH v. Leo K. McLELLAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Donald W. Westwater, Boston, for defendant.
John C. Mahoney, Asst. Dist. Atty., for the Commonwealth.
Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.
The defendant was convicted under an indictment charging armed robbery. The sole question relates to the admission in evidence of two photographs. The rulings complained of arose in these circumstances. One Gilman (the alleged victim of the robbery) was called as a witness for the Commonwealth. He was asked if at some time a picture was brought to his attention, and his answer was yes. He was then shown a picture and said it was the one which had been shown to him. The picture was offered in evidence and counsel for the defendant objected. Upon further questioning it appeared that the witness had 'picked out two pictures' of the defendant, the one offered and another. The judge asked counsel for the defendant what was the basis of his objection and counsel said, 'it's prejudicial.' The judge agreed that it was and asked counsel if he wanted 'to put a piece of paper over that' (the number). Counsel for the defendant said, 'No, I object to the whole admission of the picture.' The picture was then admitted in evidence subject to the defendant's exception. Subsequently a second picture of the defendant was admitted, subject to the defendant's exception.
We have held that it is competent to show that a witness has identified the accused at a prior time. Commonwealth v. Locke, 335 Mass. 106, 112, 138 N.E.2d 359. COMMONWEALTH V. NASSAR, MASS., 218 N.E.2D 72.A And, as these cases hold, such prior identification may be of either the person or his photograph. The defendant does not argue the contrary. Rather he challenges the rulings on the ground that they permitted the introduction of pictures which had been taken from the rogues' gallery. On this meager bill of exceptions it is not entirely clear that the pictures were of that nature. But in view of the judge's concurrence in the defendant's contention that the photographs were prejudicial and the fact they contained numbers, we infer that they had the appearance of rogues' gallery photographs. The photographs are not before us. So far as appears, the only thing that would indicate that they might have come from police files was the number. There is nothing to indicate that they contained any police history of the defendant. The judge was willing...
To continue reading
Request your trial
-
Com. v. Blaney
...4 Mass.App. 476, 350 N.E.2d 721 (1976); Commonwealth v. Day, 4 Mass.App. 831, 351 N.E.2d 547 (1976). See also Commonwealth v. McLellan, 351 Mass. 335, 220 N.E.2d 819 (1966); Commonwealth v. Nassar, 351 Mass. 37, 42, 218 N.E.2d 72 (1966); Commonwealth v. Locke, 335 Mass. 106, 112, 138 N.E.2d......
-
State v. Redding
...supra, 406 Ill., 315, 94 N.E.2d 191, 195; State v. Childs, supra, 198 Kan. 4, 422 P.2d 898, 903--905 (1967); Commonwealth v. McLellan, 351 Mass. 335, 220 N.E.2d 819 (1966); State v. Owens, 15 Utah 2d 123, 388 P.2d 797 and citations note 1, page 798 (1964). See also citations in State v. Tap......
-
Com. v. Fitzgerald
...4 Mass.App. --- B, 350 N.E.2d 721 (1976); Commonwealth v. Day, 4 Mass.App. --- C, 351 N.E.2d 547 (1976). See also Commonwealth v. McLellan, 351 Mass. 335, 220 N.E.2d 819 (1966); Commonwealth v. Nassar, 351 Mass. 37, 42, 218 N.E.2d 72 (1966); Commonwealth v. Locke, 335 Mass. 106, 112, 138 N.......
-
Com. v. Kelly
...made no such suggestion, and his objection to both photographs does not appear to have been made on this basis. Commonwealth v. McLellan, 351 Mass. 335, 220 N.E.2d 819 (1966). Defense counsel in this case elicited testimony that the mug shots depicted the defendant when he was much younger ......