Commonwealth v. Fortier

• Decision Date: 03 January 1927
• Citation: 155 N.E. 8,258 Mass. 98
• Parties: COMMONWEALTH v. FORTIER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 98

155 N.E. 8

COMMONWEALTH

v.FORTIER.

Supreme Judicial Court of Massachusetts, Hampshire.

Jan. 3, 1927.

Exceptions from Superior Court, Hampshire County; Dillon, Special, Judge.

Joseph F. Fortier was convicted of operating an automobile on a way while under the influence of intoxicating liquor after previous conviction therefor, and he excepts. Exceptions overruled.

T. J. Hammond, Asst. Dist. Atty., of Northampton, for the commonwealth.

D. D. O'Brien, of Northampton, for defendant.

RUGG, C. J.

The defendant was tried upon a complaint charging him with operating an automobile on a way while under the influence of intoxicating liquor, and further charging him on a named date before a specified court with having been previously convicted of operating an automobile under the influence of intoxicating liquor.

[1] The allegation in the complaint of prior conviction of the same offense, entailing as it does, under G. L. c. 90, § 24, as amended by St. 1924, c. 183, a more severe sentence in the event of conviction than is required for a first offense, made the former conviction a part of the essential description and character of the offense charged. Commonwealth v. Harrington, 130 Mass. 35;Commonwealth v. Holley, 3 Gray, 458;Walsh v. Commonwealth, 224 Mass. 39, 40, 112 N. E. 486.

[2] No record of conviction of the prior offense was in evidence. The defendant offered himself as a witness in his own behalf, and subject to his own exception testified on cross-examination that he pleaded guilty to a charge of the prior offense as charged in the complaint and paid a fine in a court of competent jurisdiction in this commonwealth. The question is whether the admission of this testimony was competent over the defendant's objection. The contention of the defendant is that such prior conviction could have been shown only by the record of the court wherein he was convicted, and not by his own testimony received subject to his exception. This question has never arisen for decision in this commonwealth.

[3] It is the settled rule that, although a defendant in a criminal proceeding cannot be compelled to give evidence against himself, yet, when at his own request he becomes a witness in his own behalf, he may be cross-examined at large and may be questioned as to all matters relevant to the charge against him. Whatever he has said or done, or omitted to say or do, having a legitimate bearing on his guilt, may be the rightful subject of interrogation while he is on the witness stand. Commonwealth v. Smith, 163 Mass. 411, 431, 40 N. E. 189, and cases collected; Commonwealth v. Johnson, 175 Mass. 152, 153, 55 N. E. 804;Commonwealth v. Tolliver, 119 Mass. 312, 315. It is not open to doubt that, if the defendant had pleaded guilty to the complaint, such plea would have covered every element charged therein, and that the court might have proceeded to sentence without further proof of prior conviction. It is equally clear that, when made out of court, a confession by the defendant of the offense charged in the complaint, or an admission by him of that part of the complaint relating to the earlier offense, would have been admissible in evidence against him without the production of the record. The prior conviction in the case at bar was set out at length in the complaint. It thus was ‘fully and plainly, substantially and formally, described.’ Article 12 of the Declaration of Rights. The defendant was given ample notice that he was charged with such prior conviction. There was no possibility of surprise. The conviction was for an offense of the same nature as the new matter set out in the complaint. In these circumstances it was a subject about which the defendant may be presumed to have accurate knowledge.

[4][5] It is a general rule that the best evidence must be produced, or its absence accounted for. But, as already suggested, in criminal cases plea of guilty, confession, or admission is accepted under the rules of law as doing away with necessity of record evidence. So far as concerns evidence of guilt, there is no sound distinction in principle between a confession or an admission by one charged with crime made outside of court and a confession or an admission made on the witness stand when one charged with crime...