Commonwealth v. Reibstein

• Decision Date: 23 November 1926
• Citation: 154 N.E. 271,257 Mass. 436
• Parties: COMMONWEALTH v. REIBSTEIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 436

154 N.E. 271

COMMONWEALTH

v.REIBSTEIN.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 23, 1926.

Exceptions from Superior Criminal Court, Suffolk County; W. H. Whiting, Judge.

A. William Reibstein was convicted of performing an abortion, and he excepts. Exceptions overruled.

1. Criminal law k407(1)-Evidence that before arrest defendant, by silence when charged, admitted abortion and offered to settle, held admissible.

In abortion prosecution, commonwealth could show that defendant, before arrest, when charged by husband with illegal operation on his wife, did not deny it, and prove he admitted such fact after arrest.

2. Criminal law k396(2)-Testimony that defendant said in officer's presence he had conversation held to make officer's testimony as to conversation competent.

In abortion prosecution, testimony that defendant said in officer's presence that he had conversation wherein husband charged him with illegal operation on his wife held to make officer's testimony as to conversations between husband and defendant in officer's presence competent.

3. Criminal law k406(3)-Incriminating statements freely made while under arrest are admissible.

Any statement freely made by defendant when under arrest showing guilt is admissible.

4. Criminal law k409-Preliminary determination of admissibility is unnecessary to reception of incriminating admissions not amounting to confession.

Where testimony relates to admissions of guilt and not to confession, defendant cannot require court to make preliminary finding of facts as to its admissibility.

5. Criminal law k409-Preliminary hearing to determine admissibility of defendant's incriminating statements held not subject to objection.

In abortion prosecution, preliminary hearing as to competency of defendant's admissions after arrest that he performed illegal operation held not subject to objection.

6. Criminal law k781(5)-Instruction that incriminating statements to officer could be considered only if jury believed defendant made replies testified to held not erroneous.

In abortion prosecution, trial court properly instructed that if jury did not find defendant in conversation in officer's presence admitted he performed illegal operation, to disregard all that was said in his presence.

J. J. Leonard, Asst. Dist. Atty., of Boston, for the commonwealth.

F. Juggins and Margaret M. McChesney, both of Boston, for defendant.

SANDERSON, J.

The defendant was convicted of performing an abortion of one Agnes McGarigle.

The exceptions argued relate to the admissibility of the testimony of Officer McCaffrey as to conversations between the husband of the woman and the defendant in the officer's presence. The first conversation was at the defendant's office after his arrest. The testimony tended to show that the officer notified the defendant that he was under no obligation to talk, but, if he did reply to questions, what he said would be used against him in court. The husband then repeated to the defendant what purported to be in part a conversation with the defendant shortly after the date of the alleged offense, to the effect that he had then called with two friends and charged the defendant with operating on his wife twice, and told him that he was going to see that he was prosecuted for it; that when he started to go out the defendant called him back and said, ‘Keep cool,’ that they could fix the matter up if he would be reasonable, and that the husband at that interview told the defendant that he did not want money, that he wanted the defendant punished, and that thereafter the defendant settled with the husband's attorney for $1,000. To the officer's question whether the husband came to the defendant's place and whether the foregoing conversation took place, the defendant answered, ‘Yes.’ The omcer also testified to a conversation between the husband and the defendant at a later time and when the defendant was still under arrest, in substance like the conversation above described, and at the end of it the husband asked the defendant if he remembered telling the husband to keep cool, and that the matter could be very easily arranged without publicity, and the defendant then said, ‘Yes; I do recall that conversation.’

The judge instructed the jury, when the evidence went in and later in his charge, that he had had a preliminary hearing to decide upon the competency of the alleged admissions and had ruled them to be competent, but that the defendant, being under arrest, had a right to remain silent or to deny accusations, and in that case the evidence could not be used against him; that the jury could consider the evidence as to what was said in his presence only if they found that he made the replies testified to in the evidence. The defendant contends that the evidence was incompetent because the defendant was under arrest and also because the judge, having ruled after a preliminary hearing that the evidence was admissible, left it to the jury to disregard it if they...