Commonwealth v. O'Brien

• Decision Date: 04 January 1876
• Citation: 119 Mass. 342
• Parties: Commonwealth v. Timothy O'Brien
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

119 Mass. 342

Commonwealth v. Timothy O'Brien

Supreme Court of Massachusetts

January 4, 1876

Argued November 22, 1875

Suffolk. Indictment charging the defendant with an assault on July 7 1875, on James M. Ellis, with a certain dangerous weapon, to wit, with a knife, with the intent to kill. Trial in the Superior Court before Bacon, J., who allowed a bill of exceptions in substance as follows:

During the trial one Philip Wachtell, a dealer in hardware, was asked by the district attorney if he had ever seen the defendant before; and he answered, "I can't swear I ever did. I am not sure he is the man." He then proceeded to state that about six o'clock, on the evening of July 7, 1875, a man came to his shop, looked into his show-case, and wanted to be shown a knife. The district attorney then asked the witness to state the conversation that took place between them. The defendant's counsel objected, but the judge allowed the conversation to go in notwithstanding the defendant's objection. The defendant excepted to this ruling and the evidence admitted under it. The witness then related the conversation that took place stated that this person finally bought a knife of him for the sum of forty cents; that it was a jack-knife, and was of the same make and style of the knife shown to him, (referring to a knife which the government contended was knocked out of the defendant's hand on the day of the alleged assault.) On cross-examination the witness reiterated his former statement that he would not swear the defendant was the person who had this conversation, and who purchased the knife. He further stated that he could not swear the knife produced was the knife he sold, as he had sold seven or eight dozen of the same style and make of knives within six months.

During the trial the defendant called several witnesses, who testified to the fact that the defendant had the reputation of being a peaceable and quiet person. The defendant did not testify in the case. After the evidence for the defence was closed, the government called one Davis, an officer, and offered to show by him that the defendant was one of four defendants named in an indictment for an assault upon one John Walsh. The defendant objected, but the judge admitted the evidence, and the defendant excepted.

The government then offered to put in the indictment above referred to, and the same was admitted, against the defendant's objection, on the ground that it was proper and material as affecting the reputation of the defendant. It was admitted by the government, before the judge gave this ruling, that this indictment had been returned at the present term of court, and had been placed upon file. Davis was not asked as to the reputation of the defendant, and no attempt was made by the government, other than by the introduction of this indictment, to refute the evidence introduced by the defendant, as to the reputation of the defendant as a peaceable and quiet person. It appeared by indorsements on the indictment that the defendant pleaded not guilty on August 7; on the 9th satisfaction was filed; on the 10th the defendant pleaded guilty, and the indictment was placed on file on payment of costs.

The defendant asked the judge to rule as follows: "1. If the jury believe that the knife was a common pocket-knife carried by O'Brien, (whether a large one or a small one is immaterial in this particular,) and that he did not arm himself with it for the purpose of an assault on Ellis, O'Brien cannot be said, within legal phraseology, to have been armed with a dangerous weapon.

"2. This knife is not in law what is called a dangerous weapon.

"3. It is a question of law for the court to decide whether the jack-knife was a 'dangerous weapon,' and the court is requested to rule in the negative.

"4. If the court refuses to so rule in either of its aspects, and it is thought to be a question of fact, the court is requested to rule that 'a dangerous weapon' per se is only a weapon which is intended in its natural and ordinary uses for the purposes of defence or offence only or mainly, and not one which, like a cane, or a case-knife, or an ordinary pocket-knife or jack-knife, which may occasion dangerous injury to life or limb when used with that purpose and that intent."

The judge refused to give either of the rulings, and ruled and instructed the jury as a matter of law that a jack-knife, like that exhibited to the jury, was a dangerous weapon; to which refusal to rule as requested, and to the ruling given, the defendant excepted.

The jury returned a verdict of "guilty of assault and battery with a knife, but without intent to kill and murder, as alleged." The defendant alleged exceptions.

Exceptions sustained.

G. W. Searle, for the defendant.

W. C. Loring, (C. R. Train, Attorney General, with him,) for the Commonwealth.

Endicott, J. Colt, J., absent.

OPINION

Endicott

The defendant called witnesses who testified to his general reputation as a peaceable and quiet citizen. The government was then allowed to prove that the defendant had been indicted for an assault, and to put in evidence an indictment wherein he was, with other persons, indicted for an assault upon one John Walsh. To this indictment it appeared that the defendants pleaded not guilty; two days afterwards satisfaction was filed, and on the day following the plea was retracted by the defendants, and they pleaded guilty. The indictment was then placed on file on payment of costs, which were paid, but no sentence was passed. The evidence thus admitted to meet evidence of general reputation, was, in substance, that the prisoner had committed another...