Commonwealth v. Clifford

• Decision Date: 19 October 1887
• Citation: 145 Mass. 97,13 N.E. 345
• Parties: COMMONWEALTH v. CLIFFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 97

13 N.E. 345

COMMONWEALTH v. CLIFFORD.

Supreme Judicial Court of Massachusetts, Worcester.

October 19, 1887

COUNSEL John Hopkins and Chas. R. Johnson, for defendant.

The original charge is open to the criticism that it is a charge with reference to a matter of fact, and so is prohibited by Pub.St. c. 153, § 5. The fact to be proved was sexual intercourse. Without reference to the soundness of the opinion expressed by the court, it is submitted that the sufficiency of the circumstantial evidence was for the jury and not for the court, and the court had no right to express the opinion that the occupancy together of the room by the parties was enough to warrant the finding of guilty. The statement "that the evidence alluded to was as strong as is usually found in such cases" is open to question as a matter of fact. Courts and practitioners might differ as to the proposition. It was a statement of the judgment of the court, and its conclusion upon a matter of fact, and was an interference with the province of the jury. Com. v Barry, 9 Allen, 277. The modified charge is open to all the criticisms that may be made against the original. The jury would not be warranted in finding the fact of adultery from the circumstance that "a married man is found with a woman not his wife, in a room with a bed in it, and stays through the night with her there," unless that circumstance satisfied them beyond a reasonable doubt of the criminal act. The court cannot say, as a matter of law, that the circumstance put in evidence would so satisfy them, or that it ought to satisfy them. The court should in all cases be scrupulously careful not to invade the province of the jury by undertaking to decide on the weight or effect of evidence. Gavett v. Railroad Co., 16 Gray, 505. The fact of adultery was to be determined as an inference of fact from the evidence adduced before the jury. It was their duty to pass upon this evidence. The court had no right to express an opinion upon its weight, or to indicate what the judgment of the court was as to the weight it ought to have. Banfield v. Whipple, 14 Allen, 13.

The defendant alleged exceptions to a certain portion of the charge of the judge. His duty was to reduce the same to writing, and file them with the clerk within three days after the verdict. Pub.St. c. 153, § 8. No judgment could be entered in the case, which in this connection, the defendant assumes, means that no sentence could be imposed, unless the exceptions were adjudged immaterial, frivolous, or intended for delay. Pub.St. c. 153, § 11; Com. v. Gloucester, 110 Mass. 497. The language of the statute carries with it by fair implication, the idea that the judgment of the court is on the immateriality and frivolity, and their purpose follows their filing and allowance. See Pub.St. c. 153, § 12.

What an exception is, first appears of record when it is allowed. What it is claimed to be by the party who alleged it, first appears when it has been summarily reduced to writing and filed. The statute does not provide for noting an exception.

A.J. Waterman, Atty. Gen., for the Commonwealth.

OPINION

HOLMES, J.

1. This is an indictment for adultery. It is not denied that there was evidence for the consideration of the jury, but the principal exception taken is that the court charged the jury with respect to matters of fact. The...