Com. v. Min Sing
| Decision Date | 20 May 1909 |
| Parties | COMMONWEALTH v. MIN SING et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Michael J. Dwyer, Asst. Dist. Atty., for the Commonwealth.
Chas W. Bartlett, Harvey H. Pratt, and Julian C. Woodman, for defendants.
This case comes before us upon a petition to establish exceptions taken at the trial of the defendants upon an indictment for the murder of four men by shooting. The persons killed were all Chinese, and so are the defendants. Ten men were included as defendants in the indictment, of whom nine were charged with murder and one was charged with being an accessory to the murder before the fact. One of the defendants died during the trial, and the others were found guilty, eight of them of murder in the first degree, and one of being an accessory to the murder before the fact. Upon a motion for a new trial made in behalf of all the defendants the verdict was set aside as to four of them, on the ground that it was not sufficiently supported by the evidence. The other five are before us upon this petition to prove exceptions. As to one of those whose motion for a new trial was granted, the district attorney entered a nolle prosequi upon the indictment.
It was found by the commissioner and is conceded by the commonwealth that all but one of the exceptions stated in the bill were properly saved, and that the petitioners, in good faith, made an honest effort to present truly the exceptions alleged to have been taken. The commonwealth therefore agrees that all of the exceptions but this one are before us for consideration. The question in regard to this exception grew out of a misunderstanding between the presiding justices and the attorneys for the defendants. The commissioner, in his report, has made very full and elaborate findings of fact, and has reported to the court the question of law whether, on his findings, the exception is proved.
There was an offer by the defendants to show that one Yee Wah, who had assisted the police officers as an interpreter in their efforts to ascertain the facts and to arrest the guilty parties, had endeavored to induce four different persons to give false testimony against the defendants, and had paid to three of these persons $50 each, and to the other $43, on his promise to give such testimony. Neither of these persons testified in the case at any stage of the proceedings. At the same time there was an offer of testimony tending to show that one Linton, a police officer who helped arrest some of the defendants, and who assisted in obtaining evidence of the facts and communicating to the district attorney, was implicated in the effort to procure false testimony from some of these persons. This offer was made in a conference between counsel and the court, immediately after an objection by the commonwealth to one of the questions put by the defendants' counsel. The defendants' attorneys urged the admissibility of the testimony, and the court said, in substance, 'The evidence is not admissible.' Mr. Bartlett, for the defendants, made a motion with his hand to the official stenographer, as a request to come to the bench where the conference was in progress. The court then inquired of Mr. Bartlett why he wanted the stenographer, and he replied that he wanted him to take down and put upon the record what had been said, meaning the offer of proof and the action of the court thereon. The court replied: The stenographer, who had risen from his seat, sat down again. It was arranged that the defendant's counsel should put their offer of proof in writing and present it to the justices. The witnesses referred to in the oral offer were excused from further attendance. This conference was on Friday, and the written offer of proof was presented to the justices in the morning of the following Monday, substantially as it had been stated orally, except that it did not contain a part of the offer, which the justices said at the conference they would admit, and which subsequently was admitted in the form of a deposition. The writing was not shown to the district attorney, and no reference was afterwards made to the subject by the justices of the counsel until after the case had been given to the jury, when one of the defendants' attorneys said to the justices, 'I suppose our rights are saved on our offer of evidence that the court rejected,' and the judge replied that he did not understand that they had any rights, as the court had not been asked to rule upon the written offer. The commissioner found that the 'defendants' counsel had made an oral offer of proof, * * * that all three of said counsel believed that the court had ruled and had excluded the evidence, that said counsel believed that their exception to the ruling was recognized and that their exception was saved to them.' He also found 'that the words of the court gave the counsel reasonable cause to believe that their right was saved to them.' The subsequent difference of opinion arose from an understanding of the judges that the arrangement for the presentation of the offer in writing was in order that the presiding justices might consider it as it would appear in writing, instead of ruling upon the oral statement; while the counsel understood it to be that the matters might be shown in a more satisfactory form than they had taken in the discussion which had been going on during the conference, and that the offer drawn by counsel might take the place of a stenographer's report of what had been offered and passed upon at the conference.
Upon the findings of the master it appears that the defendants' counsel indicated an intention to save an exception to the supposed ruling, and that the court said that which fairly implied that an exception had been saved. In determining the legal effect of action between parties, the reasonable interpretation of what is said or done is controlling. On the evidence, we are of opinion that the exception was legally saved. Were it not for the arrangement to have the offer put in writing, this would be plain. The judges' understanding that this formal writing was to be treated as a presentation of the offer de novo, for future action, does not appear to have been so stated to the counsel as to be understood by them, or to deprive them of the exception which they supposed and had reason to suppose had been saved. See Clemens Electric Mfg. Co. v. Walton, 173 Mass. 286, 52 N.E. 132, 53 N.E. 820; Thwing v. Clifford, 136 Mass. 482; Kenny v. Ipswich, 178 Mass. 368, 59 N.E. 1007. We shall, therefore, consider the questions of law that are raised by the bill of exceptions.
The offer of evidence was founded on the familiar rule that such dishonest and criminal conduct of a party in the preparation or trial of a case is in the nature of an admission, implied from his conduct, that his claim is false and unjust. Egan v. Bowker, 5 Allen, 449; Hastings v. Stetson, 130 Mass. 76; Simes v. Rockwell, 156 Mass. 372-374, 31 N.E. 484; Boyle v. Columbian Fire Proofing Co., 182 Mass. 93-103, 64 N.E. 726.
Where the person sought to be bribed does not testify, there is not such a probability that the influence attempted to be exercised upon him has been exercised upon other witnesses as to make the attempt competent, as indicating that the other witnesses have testified falsely. But such conduct of a party implies a consciousness that his case cannot rest upon its merits, and is in the nature of an admission that he is in the wrong in his contention before the court. The principle and the rule founded upon it are applicable to conduct of a defendant in a criminal case, as well as to that of a party in a civil suit. Com. v. Wallace, 123 Mass. 400; Com. v. Webster, 5 Cush. 295-316, 52 Am. Dec. 711; Com. v. Sullivan, 156 Mass. 487, 31 N.E. 647; Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528. Of course if the person who seeks to procure perjured testimony in a trial is himself a witness testifying as to matters in dispute, his misconduct and manifest bias may be shown to affect his credibility. If it is conceivable that a prosecuting officer, legally representing the commonwealth, might be guilty of such misconduct, the question whether his wrong could be shown as an admission affecting the commonwealth is one that has not been decided in any of the cases cited in the argument, nor in any that we have discovered in our independent investigation. There are numerous cases in which when a party instituting and promoting a criminal prosecution was himself a witness and attempted to obtain false testimony from others, or otherwise to present the case unfairly, his misconduct has been held competent to affect his credibility. If we assume without deciding that such an attempt on the part of an official public prosecutor, representing the commonwealth, in the trial of a criminal case might be proved to affect the rights of the public in their interest to convict and punish the guilty, it does not follow that an act of one merely assisting in ascertaining facts, or performing official duties as a sheriff or constable or police officer in the detection of criminals, can be shown as an admission of the commonwealth. Plainly, the declarations of such an officer would not be competent evidence against the state. The reasoning applied to the declarations of the victim of a murder, offered as evidence in the trial of the murderer, is equally applicable to such a case. In Com. v. Densmore, 12 Allen, 535-538, the court said: ...
To continue reading
Request your trial