Commonwealth v. Doyle
| Decision Date | 03 February 1949 |
| Citation | 84 N.E.2d 20,323 Mass. 633 |
| Parties | COMMONWEALTH v. JOHN F. DOYLE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 30, 1948.
Present: QUA, C.
J., LUMMUS, RONAN WILKINS, & WILLIAMS, JJ.
Evidence, Admitted without objection, Offer of proof, Relevancy and materiality Affidavit. Witness, Cross-examination. Practice, Criminal New trial.
A trial judge cannot be required to strike out evidence admitted without exception even though its admission would have been adjudged error had there been a seasonable exception thereto.
No reversible error was shown in the exclusion of an immaterial question on cross-examination where there was no offer of proof or statement as to what answer was expected.
After a witness had testified to a statement made to him by a party, it was not error to exclude, in cross-examination by that party, a question asking the witness "in what way" he thought the statement attributed to the party "was germane or part of the coherent conversation."
In cross-examination of a witness who had testified to a conversation with a party, there was no error in excluding a question as to whether a certain statement by the party to the witness was "responsive" to anything which the witness had said to him.
A witness could not properly have been questioned concerning the accuracy of statements in a newspaper concerning certain facts as to which he had testified.
An offer of proof of facts irresponsive to an excluded question is ineffective.
A judge is not required to believe facts stated in an affidavit supporting a motion for a new trial of an indictment.
The question whether taking a verdict of guilty on each of two counts of an indictment was error because the counts were inconsistent, could have been raised at the trial by a motion that the Commonwealth be required to elect between the counts and therefore could not be raised as of right upon a motion for a new trial.
INDICTMENT, found and returned on November 17, 1947. The case was tried before O'Brien, J.
In this court the case was submitted on briefs.
F. Juggins & A.
F. Hassett, for the defendant.
G. Fingold, Assistant Attorney General, & J.
E. Lajoie, District Attorney, for the Commonwealth.
The defendant, a councillor of the city of Fall River, was indicted in two counts, one for corruptly requesting of Norman A. Dubois a gift or gratuity or a promise to make a gift of $5,000 under an agreement or with an understanding that his vote, opinion or judgment would be given in favor of the purchase by the city from said Norman A. Dubois of a parcel of land. The other count was similar, except that the money was described as "a certain sum of money." G L. (Ter. Ed.) c. 268, Section 8.
The defendant was found guilty by a jury on both counts, and sentenced to not more than seven years nor less than five years in the State prison on each count, the sentences to run concurrently. The case comes here on a report with an assignment of errors and a transcript of evidence, under G. L. (Ter. Ed.) c. 278, Sections 33A-33G.
The evidence showed that an order was before the city council of Fall River in 1945 for the purchase by the city of land at Sandy Beach, in which Norman A. Dubois was interested, for the sum of $22,750. The first assignment of error is to the admission in evidence of the testimony of the city clerk that in 1946 he learned that an investigation was being carried on by the State police concerning that order. That assignment was not argued by the defendant, and consequently was waived. Commonwealth v. Gale, 317 Mass. 274 , 276.
The Commonwealth put on the stand as a witness Mayor Murray of Fall River. He testified to the discussions in the city council and elsewhere as to the sewage problem in Fall River. On redirect examination the Commonwealth asked him what the several questions asked him by the defendant on cross-examination had to do with the question of acquiring the Sandy Beach site for the sewage disposal plant, and he was permitted to answer that those questions had no bearing on the matter. The defendant did not except to the admission of the evidence until the witness had answered, and then excepted only to the refusal of the judge to strike the answer out. The answer was in the evidence, and the judge was not required to strike it out even though on seasonable exception its admission would have been adjudged error. Boyle v.
Columbian Fire Proofing Co. 182 Mass. 93 , 99. Crowley v. Swanson, 283 Mass. 82 , 85. Solomon v. Dabrowski, 295 Mass. 358 , 360.
The third assignment of error is to the exclusion of a question asked by the defendant on cross-examination of Norman A. Dubois. The witness testified that he told the defendant that he was willing to pay a real estate broker five per cent for selling the property to the city, but was unwilling to pay anything to a councillor. The defendant asked him, "Has that always been your position, your story?" and excepted to the exclusion of the question. No offer of proof was made, and no statement as to what was hoped for in answer to the question. Ordinarily with respect to questions asked on cross-examination, no offer of proof is required. Stevens v. William S. Howe Co. 275 Mass. 398 , 402. Commonwealth v. Rudnick, 318 Mass. 45 , 56. But where as here it was immaterial whether the witness had always been willing to pay a real estate broker but unwilling to pay a councillor, the cross-examiner may reasonably be expected to state his hope of an answer that would appear helpful to the defendant. Commonwealth v. Sherman, 294 Mass. 379 , 389. See also McGeorge v. Grand Realty Trust, Inc. 316 Mass. 373 , 377. No harmful error is shown.
The fourth assignment of error relates to another question put to Dubois on cross-examination. Dubois testified that the defendant said to him that "some of those fellows," meaning apparently the councillors, were a "lot of wolves." The defendant asked him, "In what way did you think that that was germane or part of the coherent conversation, if the only talk that you had with him was relative to the sale, that you were willing to pay a real estater a five per cent fee?" The question was excluded, and the defendant excepted. There was no error in excluding the question. If the defendant said that the councillors were "wolves," it made no difference whether that statement was germane to the subject under discussion, or part of a coherent conversation. Whether it was or not, the jury were the ones to determine the fact, so far as it was material.
The fifth assignment of error is to the exclusion of a question to Dubois on cross-examination as follows, "Was there in anything that you said to him [the defendant] in any words which naturally called for an answer to be responsive that `these fellows were a bunch of wolves'?" There was no error in this. The witness could state what the conversation was. Whether it was natural, reasonable or responsive was for the jury.
The sixth assignment of error is to the exclusion of questions to the witness Dubois concerning a publication in the Providence...
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