Commonwealth v. Hassan

• Decision Date: 26 February 1920
• Citation: 235 Mass. 26,126 N.E. 287
• Parties: COMMONWEALTH v. HASSAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 26

126 N.E. 287

COMMONWEALTH

v.HASSAN.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 26, 1920.

Exceptions from Superior Court, Essex County; Callahan, Judge.

Imbrian Hassan was convicted of manslaughter, and he excepts. Exceptions overruled.Daniel C. Manning, of Salem, for Commonwealth.

E. J. Carney, C. A. Green, and A. S. Bachorowski, all of Salem, for defendant.

RUGG, C. J.

The defendant was indicted jointly with one Suleman Hassan for the murder of Ali Hassan, a brother of the defendant. He was found guilty of manslaughter and Suleman Hassan was acquitted. There seems to have been little, if any, controversy at the trial concerning the fact that Ali Hassan was killed by the shot of a revolver feloniously fired by one or the other of the two persons indicted. Each attempted to put the blame upon the other.

[1][3][4] During the argument of the district attorney, counsel for the defendant handed thirteen written requests for instructions to the clerk of the court, who presented them to the presiding judge. Counsel for the defendant neither said nor did anything further about the requests until after the charge, when he orally called the attention of the judge to his failure to give requests numbered 4, 7 and 13. The judge refused to consider them on the ground that they were not seasonably presented. No exception was taken to the charge in any particular, but exception was saved to refusal to grant these three requests.

Comprehensive codes of rules of the superior court were adopted in 1859, 1874, 1886, 1900, 1906 and 1915. The first reference to the subject of requests for rulings appears in rule XXXVII of those adopted in 1874. It is that ‘all requests for instructions shall be made in writing.’ It appears in the same form in rule L. of the rules of 1886. In rule XLVIII of the rules of 1900 words were added so that then it read:

‘All requests for instructions shall be made in writing before the closing arguments unless special leave is given to present further requests later.’

In rule XLV of the rules of 1906, the form is as follows:

‘Requests for instructions or for rulings in trials with or without jury shall be made in writing before the closing arguments unless special leave is given to present further requests later.’

In the rules of 1915 substantially the same form occurs. The rules of 1915 alone of these several codes of rules appear by their terms to be restricted in operation to civil business of the court.

So far as we are aware, there never has been an express rule of the Supreme Judicial Court requiring requests for instructions to be in writing and handed to the presiding justice before arguments. It has been the established practice of this court for many years that no party as matter of right may present requests for instructions in any other way or at any other time than in writing and before arguments.

Before the adoption of any formal rule in the superior court, it had become the settled and recognized practice that requests for instructions could as matter of right be presented only before argument. As early as 1846, in Dole v. Thurlow, 12 Metc. 157, at page 164, the practice was declared by Chief Justice Shaw to be that requests for rulings at the close of the charge were too late and that they ought to be presented in season at least to apprise adverse counsel of views of the law contended for. Manifestly this could be done only by bringing them forward before arguments. It was so stated in express terms by Chief Justice Gray in Ela v. Cockshott, 119 Mass. 416, in 1876. In McMahon v. O'Connor, 137 Mass. 216, it was said by Mr. Justice Holmes in 1884 that--

‘It is the undoubted right of parties to present requests for rulings, and to have them passed upon. But the right is not infringed by requiring it to be exercised in a reasonable way.’

Whether and how to deal with requests presented after the beginning of arguments was said, according to settled practice, to rest in the discretion of the trial judge. In Brick v. Bosworth, 162 Mass. 334, 39 N. E. 36, are found these words by Mr. Justice Knowlton:

‘A party must seasonably present a request in writing to the judge, and the ordinary rule of practice which has been approved by this court is that such a request must be made before the arguments.’

This salutary rule of practice prevails in the trial of criminal cases. It was recognized as relevant in Commonwealth v. Boutwell, 162 Mass. 230, 38 N. E. 441.

It is obviously reasonable that requests for instructions, if they are to be an aid in the administration of justice in the trial both of criminal and civil cases, ought to be presented before the arguments. It is essential that the judge be given adequate opportunity to pass upon the soundness of requested rulings. In many cases it is of importance that counsel may know what is likely to be the instruction of the judge upon controverted questions of law, so that remarks to the jury may be shaped accordingly.

Even though the rule of court does not in terms relate to criminal cases, it would be adopted in such trials by analogy when applicable. Uniformity in practice is highly desirable so far as reasonably practicable. See Strout v. United Shoe Machinery Co., 215 Mass. 116, 119, 102 N. E. 312, and Renwick v. Macomber, 233 Mass. 530, 534, 124 N. E. 670. It is manifest from this review of decisions that the rule of the superior court respecting the time for presentation of requests for rulings aims at scarcely more than the embodiment of the existing general practice without express rule.

The rule of court and the general practice apart from rule do not prevent the presiding judge from receiving and passing upon requests presented at any time before the jury retire,...