Com. v. Mullen
| Decision Date | 01 January 1890 |
| Citation | 23 N.E. 51,150 Mass. 394 |
| Parties | COMMONWEALTH v. MULLEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 1, 1890
HEADNOTES
A.J Waterman, Atty. Gen., and H.A. Wyman, Asst. Atty. Gen., for the Commonwealth.
Geo. W Searle and C.W. Wells, for defendant.
1. The defendant was convicted upon two separate counts of an indictment which charged him with being an accessory before the fact to two distinct burglaries committed by one Ellis. In the second of these, one Miller had also been a principal. The same indictment contained other counts upon which he was acquitted, charging him with being the receiver of the goods stolen on these several occasions. He moved to quash the indictment upon the ground that his offense was not set forth in what the court termed the "first count;" that this was a count against Ellis alone. He contended therefore, that when the defendant was charged with being an accessory this was a second count, and that the reference to the offense committed by Ellis, "in manner and form as aforesaid," was not sufficient to connect it therewith, and that a full statement was again necessary of the offense committed by Ellis. This is a misconstruction of the first count by attempting to break it into distinct parts, and to make of it separate counts. It is a count, and, in describing the breaking and entering by Ellis, it does this in order to set forth clearly the crime to which it alleged Mullen to have been accessory The defendant further, under his motion to quash, contended that there was in the indictment a misjoinder of parties and offenses. The defendant was charged with being an accessory to the offense committed by Ellis, and that committed by Ellis in connection with Miller, for which latter offense Miller had been previously tried and convicted, and likewise with being a receiver of the goods stolen on each occasion. The indictment also charged McGuiggin and McCormack with being receivers of the goods stolen on these occasions. It has long been the practice in this commonwealth to charge a defendant with various and distinct felonies in different counts of the same indictment, where they are of the same general nature, supported by similar evidence, and where the punishment to be awarded is of the same character. It is deemed that a defendant is sufficiently protected by the power which exists in the court to order separate trials upon the different counts, where there is, in its opinion, danger that a prisoner may be embarrassed in his defense. It is well settled that this rule has not been altered by the statute of 1861, c. 181. Pub.St. c. 213, § 18; Com. v. Cain, 102 Mass. 487; Com. v. Glover, 111 Mass. 395, 400; Pettes v. Com., 126 Mass. 242, 245, Fitzgerald v. Com., 135 Mass. 266, 269. The defendant's motion to quash was properly overruled.
2. Ellis, McGuiggin, and McCormack were, under our statute, competent witnesses for all purposes, if they saw fit to testify, whether to exonerate themselves or to give evidence implicating the defendant. Pub.St. c. 169, § 18. The presiding judge could properly allow them to be examined by their own counsel; and it was equally proper, in his discretion, when Mullen offered himself as a witness, to permit him to be cross-examined by the counsel for the other defendants as to matters material to their clients, in addition to the cross-examination of the district attorney. This necessarily resulted from the position in which Mullen had placed himself in becoming a witness.
3. It is the contention of the defendant that the testimony of Officer Cogan, who had arrested defendant, and who had asked McGuiggin if this man (Mullen) was the one who gave him the statues, which were a part of the stolen property, to which defendant replied, "I never gave you any statues," was incompetent. It was certainly incompetent to establish in any way the guilt of Mullen by the declaration of McGuiggin, then made; but its reception was limited by the court only to showing what Mullen himself said, and his then denial that he had ever given McGuiggin any statues. Similar remarks apply to the declaration made by Mullen, at the same time, that he had never seen McCormack before. These denials might well be important, especially if there was evidence that defendant did give the statues to McGuiggin, and did know McCormack. As they were received, these statements of Mullen were competent; and the case differs from Fitzgerald v. Williams, 148 Mass. 462, 20 N.E.Rep. 100, where the accusation of a party defendant of a crime which was denied by him was admitted, as bearing upon the truth of the charge, and defendant's denial less carefully limited.
4. The papers produced from a closet, to which there was evidence tending to show the defendant had access, and which there was also evidence tending to show were wrappers of the stolen goods, were admissible. It was unimportant whether the officers claimed that defendant had anything in the closet such as they were in search of, and also that another officer made, after...
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