Commonwealth v. Nott

• Decision Date: 21 June 1883
• Citation: 135 Mass. 269
• Parties: Commonwealth v. James J. Nott
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 269

Commonwealth v. James J. Nott

Supreme Court of Massachusetts

June 21, 1883

[Syllabus Material]

Suffolk. Indictment charging the defendant with the larceny on June 22, 1882, at Boston, of five pounds of bacon, in a building of one Aaron Kimball. Trial in the Superior Court before Mason, J., who allowed a bill of exceptions, in substance as follows:

Thomas Lowell, a police officer, was called as a witness for the government, and testified that the defendant, at the time alleged in the indictment, was a police officer, whose route included the building named in the indictment; that, in consequence of orders from his superior officer, the witness, on the night in question, by means of a key, entered said building and sat in a chair in a shop therein, in a position to watch, and for the purpose of watching; that said piece of bacon was then a part of the stock in trade in the shop, and was then hanging near a window opened at the top; that about one o'clock in the morning the defendant came along, put his hand in the opened window, and took the piece of bacon therefrom.

On cross-examination, the witness testified that he did not see the defendant's face very well, and did not see it so as to identify him, but saw his form and uniform; that he let him go, and about fifteen minutes afterwards met the defendant on the street with the bacon in his hand; that he said, "Where did you get that, Jim?" to which the defendant replied, "I found it on the street;" that the witness then suggested that he take it to the police station, to which the defendant readily assented, and, on arriving there, repeated the same statement to Lieutenant Johnson, the officer in charge; that thereupon the witness said, "Now, Jim, you had better own up. I was in the place when you took it. We have got you down fine. This is not the first you have taken. We have got other things against you nearly as good as this;" -- that then the defendant "weakened," and asked the witness to drop it, and said he would resign, and the witness and the lieutenant could have the credit of catching him.

Lieutenant Johnson, the officer in charge, testified that he was present when the defendant came into the station with Lowell; that after the defendant's talk with Lowell he appeared broken down, and he, Johnson, then asked the defendant if he took the bacon out of the store, and the defendant said, "Yes, lieutenant, I did."

This witness also testified that he could not say that Lowell said, "You had better own up, Jim;" but, on cross-examination, testified that Lowell might have so said; that he did hear Lowell say, "We have got other things against you nearly as good as this."

So much of this testimony as related to the confession was admitted against the objection of the defendant.

Aaron Kimball, another witness for the government, on cross-examination, was shown, and identified as his signature to the bottom thereof, the following paper: "Boston, Sept. 24, 1882. In the matter of the prosecution of James J. Nott, I, the person from whom the bacon was taken that he is charged with taking, am content not to have the matter further prosecuted. The amount taken was small, and I sympathize with his family. A. Kimball."

The defendant then offered this paper, and sought to read it to the jury, for the purpose of examining the witness in relation thereto; but the judge excluded the same.

While the witness Lowell was on the stand, his attention, on cross-examination, was called to the fact that the original complaint in the Municipal Court was sworn to by one Honey, a police officer, who, Lowell testified, was not present at the...