Commonwealth v. Barronian
| Decision Date | 01 April 1920 |
| Parties | COMMONWEALTH v. BARRONIAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; John A. Aiken, Judge.
Neshan F. Barronian was convicted of perjury, and he excepts. Exceptions overruled.
The following are the exceptions referred to in the opinion:
The defendant voluntarily took the stand as a witness in his own behalf. Upon cross-examination he admitted that he knew Edwin P. Fitzgerald and that Mr. Fitzgerald had been his counsel, and thereafter the following questions and answers were admitted against the objection and subject to the exception of the defendant:
Q. Did you consult Mr. Fitzgerald and tell him that you wanted to know how you could get rid of your interest in your property in Chelsea? A. I don't remember.
Q. Have you had more than one matter with Mr. Fitzgerald? A. He just acted as attorney for me on one matter.
Q. And the only matter he acted as attorney for you was in connection with your getting rid of your interest in this house? A. No, sir.
Q. What was it that he acted as attorney for you for? A. That is between him and me. If it is necessary, I will answer. That has nothing to do with this case.
Mr. Kinney (Assistant District Attorney, for the Commonwealth): Will your honor instruct the witness to answer?
The Court: Mr. Witness, you are under obligation to tell what talk you had with your attorney.
A. What occasion, what time?
Q. We will not get into an argument, Mr. Witness. You have said that you have had him as your attorney on only one matter. I am asking you what that matter was? A. Reckless driving of an automobile.
Q. Did you consult Mr. Fitzgerald with reference to the question of disposing of your interest in this house in Chelsea; yes or no? A. Well, I cannot say, my dear man; I don't remember. You cannot ask me to say yes or no, because I don't remember. Maybe yes; maybe no.
Q. Then your memory on that question does not serve you now? A. No; that is true.
Q. See if I can refresh your memory. Did you go to Mr. Fitzgerald's office with Manoogian? A. I don't remember that.
Q. Did you go to Fitzgerald's office with Manoogian, and say to Fitzgerald, ‘I want to get rid of my interest in the house in Chelsea?’ A. I did not have any interest to say such a thing.
Q. Did you say that; yes or no? A. I cannot say it; no.
Q. Did you say that to Fitzgerald then; yes or no? A. I said I am going to answer this question; not you, sir. My answer is this: I did not have interest to say that I have interest that I would get rid of some of that interest. That is answer enough for you.
William S. Kinney, Asst. Dist. Atty., of Boston, for the commonwealth.
Fred L. Norton, of Boston, for defendant.
The defendant was indicted for perjury committed in the trial of an issue joined on a libel of divorce in which he was libelee in that, it being material whether he owned or was interested in certain real estate in Chelsea, he testified willfully, corruptly, and with knowledge of its falsity, that he did not own such property. At the trial upon the indictment there was evidence tending to show that the defendant testified at the trial of the divorce libel that he did not own the Chelsea property. Thereupon the wife of the defendant, called as a witness by the district attorney, was permitted to testify subject to exception that shortly before their marriage in July, 1917, the defendant told her that he owned the Chelsea property.
There was no error in permitting the wife to testify respecting conversations with her husband before her marriage. Although she could not be compelled to testify against her will, she nevertheless was a competent witness and might give evidence if she chose. R. L. c. 175, § 20.
The principle always has been enforced by this court that neither a husband nor wife shall testify as to private conversations. Sampson v. Sampson, 223 Mass. 451, 458, 112 N. E. 84. Private conversations in this sense can occur only during the existence...
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...held before marriage. Such conversations are not excluded from being offered as evidence in court." Commonwealth v. Barronian, 235 Mass. 364, 366, 126 N.E. 833, 834 (1920).4 Both statutes have since been amended by St.1975, c. 457, §§ 1 and 2, approved July 11, 1975, to read in pertinent pa......
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