Com. v. Reagan

• Decision Date: 01 March 1900
• Citation: 56 N.E. 577,175 Mass. 335
• Parties: COMMONWEALTH v. REAGAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

175 Mass. 335

56 N.E. 577

COMMONWEALTH v. REAGAN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1900

COUNSEL

J. D. McLaughlin, 2d Asst. Dist. Atty., for the Commonwealth.

Chas E. Sullivan, for defendant.

OPINION

HAMMOND J.

As the result of the voir dire examination of the witness, the judge was of the opinion that she was not competent; but no formal order or ruling was made, and he permitted her to be sworn and to testify, stating that he should leave the question of her competency to the jury. In his charge to them he gave full and careful instructions as to the law material to that issue, and told them that, if they found her competent, they should take her statements as evidence; otherwise they were to disregard all she had said, and deal with the case as though she had not been called. The evidence as to her competency is not before us, but, from the course taken by the judge, we must assume that in his judgment it would warrant a finding by the jury that she was competent. The defendant excepted to this course, contending that it was the duty of the court alone to decide that question. The jury brought in a verdict of guilty, and, in reply to the question put by the court, said that they found the witness competent and in reaching their verdict they treated her as such, and relied in part on her testimony. We assume that her testimony was prejudicial to the defendant, and therefore the simple question raised on the report is whether there was error in law in the method of dealing with the question of the competency of the witness.

Speaking generally, the text-books on evidence lay down the proposition that in a jury trial all questions as to the admissibility of evidence are for the judge. Thus, Starkie says: 'In civil as well as in criminal cases, the competency of an infant is a question of discretion of the court.' Starkie, Ev. pt. 4, p. 393. Phillips says: 'It is the province of the judge to decide all questions on the admissibility of evidence. It will be for the judge, also, to decide any preliminary question of fact, however intricate the solution, which may be necessary for enabling him to determine the other question of admissibility.' 1 Phil. Ev. p. 3. And, again, he says that the competency of a witness is a condition precedent to admitting his evidence. 'The judge alone has to decide whether such condition precedent has been fulfilled. If proof is offered by witnesses, he is to decide upon their credibility. If counter evidence is proposed, he must receive it before he decides, and he has no right to ask the opinion of the jury on the fact, as a condition precedent.' Id. p. 6. Roscoe says: 'It is for the court to decide upon the competency of witnesses, and for the jury to determine their credibility.' Rosc. Cr. Ev. (12th Ed.) 100. The rule is laid down by Greenleaf, Taylor, and Wharton in equally positive terms. 1 Greenl. Ev. (16th Ed.) §§ 81e 161b; 1 Tayl. Ev. 23a; Whart. Cr. Ev. (8th Ed.) §§ 370, 373. And this is so whether the objection to the competency is made upon the ground of interest, insanity, or infancy. Other familiar examples of the application of the rule are where confessions or dying declarations are offered in evidence. It is stated by Greenleaf that if the decision of the admissibility of the evidence depends upon the decision of other questions of fact,--as, for example, the fact of interest of the witness or the due execution of a deed,--in such cases it is allowable for the judge, at his discretion, to submit the question of the admissibility of the evidence to the jury, with instructions to consider it as evidence, or not, according as they decide that question. 1 Greenl. Ev. (16th Ed.) § 81e; Gordon v. Bowers, 16 Pa. St. 226. But these cases are regarded as exceptions to the general rule, and it may be doubted whether the language of Greenleaf is not too broad, as applied, at least, to the practice in England, and to criminal cases. See 1 Phil. Ev. 6, and the language of Erle, J., during the argument in the case of Jenkins v. Davies, 10 Q. B. 314, 320, and of Denman, C.J., in delivering the judgment of the court in the same case, at page 323. But, whatever may be the scope of this exception, it is certain that in the case of dying declarations, infancy, and insanity the rule itself is very strictly adhered to. It is true that in Rex v. Woodcock, 1 Leach, 500, Eyre, C. B., left to the jury the question whether the deceased was aware that she was in a dying condition at the time of making the declarations offered as dying declarations. That case, however, has not been followed, but has been virtually overruled, by subsequent cases. In Welbourn's Case, 1 East, P. C. 360, which was an indictment for murder, evidence was admitted of statements as dying declarations. The preliminary question was whether the deceased knew she was dying. It was left to the jury to say, upon the whole evidence, whether they were satisfied that the deceased knew her situation at the time she made the statements. The prisoner was convicted. The case being referred to the judges, they decided, by a majority opinion, that it did not sufficiently appear that she knew she was in a dying state when she made the statements; 'and they all agreed that whether the deceased thought herself in a dying state or not was a matter to be decided by the judge, in order to receive or reject the evidence, and that that point should not be left to the jury.' To the same effect is John's Case, 1 East, P. C. 357. See, also, Rex v. Hucks, 1 Starkie, 521, 522, and a note to the same, at the end of the case, by Starkie, wherein he says that the decision in Rex v. Woodcock, ubi supra, is inconsistent with principle. See, also, Bartlett v. Smith, 11 Mees. & W. 483; Jenkins v. Davies, ubi supra; Harris v. Railway Co., 1 Q. B. Div. 515, 533; Reg. v. Hill, 5 Cox, Cr. Cas. 259; Reg. v. Perkins, 2 Moody, Cr. Cas. 135; Carpenter's Co. v. Hayward, 1 Doug. 375; Bull. N. P. 297. The practice in this commonwealth is stated by Morton, C.J., in Com. v. Preece, 140 Mass. 276, 5 N.E. 494, as follows: 'When a confession is offered in evidence, the question whether it is voluntary is to be decided primarily by the presiding justice. If he is satisfied that it is voluntary, it is admissible; otherwise, it should be excluded. When there is conflicting testimony, the humane practice in this commonwealth is for the judge, if he decides that it is admissible, to instruct the jury that they may consider all the evidence, and that they should exclude the confession if, upon the whole evidence in the case, they are satisfied that it was not the voluntary act of the defendant.' In Com. v. Culver, 126 Mass. 464, Lord, J., alluding to the practice sometimes followed in a criminal case where an objection to an alleged confession of a defendant is made upon the ground that it was improperly obtained, for the judge to allow the confession, and all the...