Commonwealth v. Gleason

• Decision Date: 10 January 1928
• Citation: 262 Mass. 185,159 N.E. 518
• Parties: COMMONWEALTH v. GLEASON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 185

159 N.E. 518

COMMONWEALTH

v.GLEASON.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 10, 1928.

Appeal from Superior Court, Middlesex County.

Herbert J. Gleason was convicted of murder in the first degree, and he appeals. Exceptions overruled.J. W. Connelly, of Boston, for appellant.

R. T. Bushnell, Dist. Atty., of Boston, for the Commonwealth.

CARROLL, J.

The defendant was found guilty of murder in the first degree. There was evidence that the defendant, who was 19 years of age, with a companion, went to the store of James Monagle in Medford, with the intention of committing the crime of robbery; that the defendant carried a revolver; that Monagle gave active resistance and he was shot and killed. The assignment of errors deals with the refusal of the judge of admit certain testimony and to exclude other testimony, his refusal to give instructions to the jury requested by the defendant, and to parts of the charge.

[1] Charles J. Van Amburgh, an expert on firearms, was a witness for the commonwealth, and testified that certain bullets taken from the body of James Monagle had been fired from a pistol that the commonwealth contended had been fired by the defendant. The witness, after he had testified that he was employed as adviser on the subject of firearms with the commissioner of public safety, and had testified on cross-examination that he came to the department after the death of Capt. Proctor, was asked by counsel for the defendant:

‘Captain Proctor at one time was with the state police as a pistol expert, wasn't he?’

On objection by the district attorney the question was excluded. We fail to find any error in excluding this question; it was of no probative value; it did not bear on the qualification of the witness as an expert, and it had no bearing on the facts in issue. The defendant contends that the question asked the witness was a preliminary one, to be followed by opinions of Proctor contradicting the testimony of the witness. The transcript of the evidence does not disclose for what purpose the question was asked, nor the intention of the defendant to follow this question with evidence of the opinions of Proctor. Even if the record of the testimony showed the purpose of the defendant in asking the question, there was no error in excluding it when asked. Nothing appears in the record to show that the defendant was in any way prevented from introducing all the material evidence he desired to contradict or explain the testimony of Van Amburgh. This exception is overruled.

[2][3][4] The defendant's second exception is to the refused of the judge to exclude questions asked of the defendant on cross-examination, based on statements made by the defendant while under arrest, the defendant contending that the statements were made ‘in consequence of a promise of reward or leniency,’ and the commonwealth contending that these statements of the defendant were contradictory of his testimony on direct examination, and were in the nature of admissions. The commonwealth introduced testimony tending to show the defendant was told that anything he said would ‘be used in court later, for or against him,’ and that no promise of leniency was given him before he made the statements. The defendant testified that he had not formed the intention when he went to Medford ‘that night of holding up the store,’ and had not discussed ‘the holdup with [his] confederates until [he] got into the car.’ He was then asked by the district attorney:

‘See if this refreshes your recollection somewhat. Do you remember this question by Mr. Sherlock: * * * ‘Did you have a date to go out for this purpose?’ And your answer, ‘Yes.”

This was excepted to by the defendant. The defendant was also asked:

‘Did you tell Mr. Sherlock, or Chief Welch, or Sergeant Ward, or Officer O'Neill that you dropped the gun in the scuffle?’

And he answered, ‘Certainly, yes.’ Other questions under this exception have to do with the defendant's admissions as to where the revolver was purchased, and his intention of entering another store ‘and the door was locked.’ A confession is an acknowledgment of guilt. An admission, as the word is used in criminal law, is a statement by the accused of facts pertinent to the issue, tending in connection with the proof of other facts to prove his guilt. The rule excluding a confession of guilt by the defendant which he was induced to make through hope of benefit or because of fear has no application to a statement which is no more than an admission. Commonwealth v. Dascalakis, 243 Mass. 519, 137 N. E. 879, 38 A. L. R. 113;Commonwealth v. Haywood, 247 Mass. 16, 141 N. E. 571. The district attorney might properly ask the defendant, when a witness on his own behalf, if he made certain statements when under...