Commonwealth v. Britland

• Decision Date: 15 June 1938
• Citation: 15 N.E.2d 657,300 Mass. 492
• Parties: COMMONWEALTH v. JOSEPH BRITLAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 492

15 N.E.2d 657

COMMONWEALTH v. JOSEPH BRITLAND.

Supreme Judicial Court of Massachusetts, Bristol.

June 15, 1938

February 7, 28 1938.

Present: DONAHUE LUMMUS QUA, & DOLAN, JJ.

Evidence Competency, Relevancy. Practice, Criminal, Exceptions whether error harmful.

After a witness for the Commonwealth at the trial of an indictment for being accessory after the fact to the crime of armed robbery had testified to statements made by the defendant in conversations with him which included admissions of facts tending to show that the defendant had assisted the principal after the crime was committed, it was error to exclude questions asked of such witness in cross-examination to bring out further statements of the defendant in the same conversations to the effect that his acts were in ignorance of the commission of the crime; and the error was not rendered harmless by later testimony by the defendant in his own behalf that he made such further statements to the witness for the

Commonwealth.

At the trial of an indictment charging the defendant with being accessory after the fact to an armed robbery, where the defendant in his testimony had admitted that he had thrown away a "gun" used in the robbery, it was prejudicial error to refuse to allow him further to testify that he had done so at the request of the principal's father, who had found the "gun" and had stated to the defendant that he would not trust his son with it; and also that the defendant did not throw it away at the request of the principal.

INDICTMENT, found and returned on June 5, 1936. A verdict of guilty was returned before Dowd, J. The defendant filed an appeal with assignments of error.

H. E. Clarkin, (J.

T. Farrell with him,) for the defendant.

F. E. Smith, Assistant District Attorney, for the Commonwealth, submitted a brief.

DOLAN, J. The defendant was tried at one time under two indictments, one charging him with being an accessory before the fact to the crime of armed robbery, and the other with being an accessory after the fact to the same crime. He pleaded not guilty to each indictment. The jury returned a verdict of not guilty on the first indictment and a verdict of guilty on the second indictment. The robbery took place on April 9, 1936, in the city of Fall River, and it appeared in evidence that the principals involved were Vernon Boitano and James Connors. The former had disappeared and the latter had pleaded guilty as a principal and had been sentenced at the time of the trial of the defendant. The case comes before us by appeal under the provisions of G.L. (Ter. Ed.) c. 278, Sections 33A-33G, with a summary of the record, a transcript of the evidence and assignments of error.

Twenty-two of the defendant's twenty-four assignments of error are based on forty-three exceptions taken by him during the course of the trial. Exceptions 1, 9, 10, 11 and 18 may be grouped since they are all exceptions to the exclusion of questions asked on cross-examination by the defendant's attorney and the same fundamental question is involved in the determination of whether the judge erred in excluding them.

The prosecution called Joseph Andrews, a police officer of the Fall River police department, who testified at length to conversations had by him with the defendant in the presence of other police officers after the defendant's arrest on the second day following the robbery. In direct examination Andrews testified to statements by the defendant from which it appeared that the latter admitted driving an automobile for the principals concerned in the robbery and parking it at a designated place shortly before the robbery occurred, at the request of one of them (Boitano). The witness also testified in direct examination to statements made by the defendant relating to his meeting with Boitano after the robbery had taken place, of his visit to Boitano's home on the evening of the day the robbery was committed, of his conduct there in connection with the destruction or throwing away of a "revolver" at the request of Boitano's father, and of his subsequent conduct in his relations with the principals preceding his arrest. Exceptions 1, 9, 10 and 11 were taken to the exclusion of questions asked of this witness on cross-examination. Exception 18 was taken to the exclusion of a question proposed in the cross-examination of another police officer, who was called by the prosecution and who testified to substantially the same conversations as had been given in evidence by the witness Andrews. The defendant's defences were that when he drove the automobile and parked it at the request of Boitano he did not know that a crime was to be committed and that thereafter in all that he did, he did not know that the principals had actually committed the robbery.

Exception 1. During the cross-examination of Andrews the defendant's attorney asked him whether, in the course of the conversation with the defendant which the witness had testified to in direct examination, the defendant told him "that Boitano asked him to go to . . . [a certain house] on Highland Avenue . . . and there help him to deliver a box of oranges." Upon objection the question was excluded and the defendant excepted. The obvious purpose of this question, read in the light of the record, was to show that the defendant's association with the principals on the morning of the day on which the robbery occurred and preceding its commission was natural and innocent.

Exception 9. The witness Andrews was asked by the defendant's counsel whether the defendant stated to him that, when he got there (to the home of Boitano's father on the evening of the day of the robbery), Mr. Boitano "was very angry because he found a revolver." The witness answered, "Yes, sir." He was then asked whether the defendant stated to him that at that time Boitano, senior, asked Boitano (one of the principals) "where he got this gun." The prosecuting attorney objected, and the question was excluded, the judge ruling, in response to the request of the defendant's counsel to save his exception, that "Any self-serving statements that you seek to put in are absolutely incompetent."

Exception 10. The witness Andrews was asked by the defendant's counsel: "At the time that you talked with Britland did he tell you that on the occasion of his driving the car he didn't know they [meaning Boitano and Connors] were going to hold up the mill?" Upon objection the question was excluded and the defendant's exception was saved.

Exception 11. Andrews was then asked by the defendant's counsel: "Did you ask him [the defendant] what he wore that day?" and the witness replied, "I did, sir." He was then asked, "What did he say he was wearing?" Upon objection the question was excluded and the defendant excepted.

Exception 18. Thomas Hutchins, a police inspector of the Fall River police department, was called as a witness by the prosecution and also testified as to the conversations which had been testified to by Andrews. He was present when they took place. On cross-examination he was asked by the defendant's counsel, "Is it true that during the entire conversation that you had with Britland that he denied on all occasions that he had any knowledge of Boitano going to commit this robbery?" The question was excluded subject to the defendant's exception.

The record discloses that the questions to which the above mentioned exceptions relate were excluded on the ground either that they were not asked to contradict the witness or that they were self-serving. While it has been held that in a criminal case a defendant has no right to introduce in evidence self-serving statements (see Commonwealth v. Clark, 14 Gray 367, 373; ...