Com. v. Smith

• Citation: 329 Mass. 477,109 N.E.2d 120
• Parties: COMMONWEALTH v. SMITH.
• Decision Date: 26 November 1952
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 120

109 N.E.2d 120

329 Mass. 477

COMMONWEALTH v. SMITH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 3, 1952.

Decided Nov. 26, 1952.

John F. McAuliffe, Asst. Dist. Atty., Boston, for the Commonwealth.

Thomas E. Dwyer, Boston (George H. Lewald, Boston, with him), for defendant.

Before QUA, C. J., and LUMMUS, SPALDING, WILLIAMS and COUNIHAN, JJ.

COUNIHAN, Justice.

On an indictment for armed robbery the defendant has been found guilty and sentenced. The case is here upon an exception of the defendant to a ruling of the judge relating to evidence tending to support an alibi of the defendant, principally relied upon by him in defence.

During the cross-examination of the defendant the assistant district attorney inquired as follows:

'Assistant district attorney: You say you were driving Mongold to Norfolk Prison Colony at the time of the robbery?

'The defendant: Yes I was.

'Assistant district attorney: You know, don't you, that the records at the Norfolk Prison Colony show that Mongold told the authorities there that he arrived by bus?

'The defendant: Yes I do.

'Assistant district attorney: In the last few days you learned from your attorney that the records at Norfolk Prison Colony indicate that Mongold arrived by bus?

'The defendant: No, I knew that two years ago because Mongold told me at the time that he told the officials that he came by bus.'

One Mongold, called as a witness for the defendant, testified on direct examination that at the time of the alleged robbery on March 1, 1949, the defendant was driving the witness in an automobile of the defendant to the Norfolk Prison Colony at Norfolk, a place considerably distant from the scene of the crime. If believed by the jury this would have tended to confirm the alibi of the defendant. On cross-examination the witness was asked by the assistant district attorney if he did not tell the clerk at the Norfolk prison, when he visited there on March 1, 1949, that he arrived there by bus and he answered 'Yes.' A pass, showing the visit of Mongold, with the notation on the back of it 'bus' was introduced in evidence. Thereupon on redirect examination Mongold was asked certain questions by counsel for the defendant and an offer of proof was made after the exclusion of one of the questions. The questions and the offer of proof were as follows:

'Counsel for the defendant: You have just testified that you told the authorities at Norfolk Prison Colony that you arrived there by bus. Now, how did you get from Boston to Norfolk Prison Colony on March 1, 1949?

'The witness: I was driven there by the defendant Smith.

'Counsel for the defendant: When you obtained a pass for admission at Norfolk Prison Colony did you say that you arrived by bus?

'The witness: Yes.

'Counsel for the defendant: Did you arrive by bus?

'The witness: No.

'Counsel for the defendant: Why, then did you say that you arrived by bus?

'At this point the assistant district attorney objected and the answer was excluded whereupon the defendant made an offer of proof as follows: 'If this witness is allowed to answer this question he will say that a visitor to Norfolk Prison Colony, in obtaining a pass, must disclose his means of transportation and, if his arrival is by private car, must give the registration number and name of the operator of the vehicle and that the reason he told the official at Norfolk Prison Colony that he arrived by bus was to hide the fact that the defendant Smith, an exconvict, had driven him there because he did not want this information to be known to the institution for fear that it would militate against the parole of Mongold's son whose case was coming up before the parole board on that day.' The court still excluded the answer and the defendant saved his exception.'

This exception presents the only issue for us to decide.

We are of opinion that the failure of the judge to permit the witness to explain the inconsistent statements was error. There is no doubt that the scope of cross-examination, including to what extent the accuracy, veracity, and credibility of a witness may be tested, rests largely in the sound discretion of the judge, not subject to revision unless prejudice is shown to a party by reason of too narrow restriction or too great breadth of inquiry. Jennings v. Rooney, 183 Mass. 577, 579, 67 N.E. 665; Commonwealth v. Corcoran, 252 Mass. 465, 486, 148 N.E. 123. It is equally true that the extent to which redirect examination of a witness may be directed as to matters not brought out in cross-examination is within the discretion of the judge. Sullivan v. Brabason, 264 Mass. 276, 285, 162...