Commonwealth v. Tolliver
| Decision Date | 04 January 1876 |
| Citation | 119 Mass. 312 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Commonwealth v. Lawrence Tolliver & another |
Argued November 22, 1875 [Syllabus Material]
Bristol. Indictment charging Lawrence Tolliver and Cornelius Randall with the robbery, on September 1, 1875, from the person of Catherine Byron, of "three bank bills, each of the denomination of five dollars and each of the value of five dollars; three bank bills each of the denomination of two dollars, and each of the value of two dollars, and one bank bill of the denomination of ten dollars, and of the value of ten dollars, of the goods and moneys of said Catherine Byron."
At the trial in the Superior Court, before Wilkinson, J., the evidence of the government tended to show that Catherine Byron, the person named in the indictment, went to ride with the defendant Randall, at his invitation, on the evening of September 1, 1875; that while so riding with him in the suburbs of the city, she was attacked by two persons, beaten and bruised, and robbed of a sum of money; and it was claimed by the government, and there was some evidence tending to show, that one of the attacking party was the defendant Tolliver, and that Randall was consenting to the same in consequence of some previous understanding. Tolliver was not arrested until the end of the third day after the robbery and the evidence was conflicting as to whether he had been concealing himself and avoiding the whole or any part of that time; and to show that he had so concealed himself, the district attorney called as a witness one of the policemen of New Bedford, who assisted in his arrest, and asked him, "How soon after the robbery did you commence looking for Tolliver?" The defendant, Tolliver, objected to the inquiry as inadmissible for the purpose for which it was put; but the judge allowed the question to be put to the witness.
Samuel Brown was called by the government to testify to certain statements in the nature of confessions, and also implicating Tolliver, made to him, Brown, by Randall, while lying in jail awaiting trial; but upon examination it was found as a fact by the judge that whatever was said by Randall upon that occasion was said by him while unduly and improperly influenced by promises or threats made to him by officers and others, and upon that finding excluded the testimony proposed to be offered. Randall afterwards took the stand and testified in his own behalf; and upon cross-examination was inquired of by the district attorney in relation to the statements made by him to Brown, and was asked by the district attorney what statements he had made to Brown in the interview in the jail before referred to. The defendants objected to the inquiry proposed, but the judge ruled that having made himself a witness, the inquiry could be made whether he had made statements inconsistent with his testimony on the stand as affecting his credit.
Evidence was offered by the government in chief, tending to show that during a portion of the time between the robbery and his arrest, Tolliver was in concealment to avoid arrest. Tolliver then testified in his own behalf, and stated with particularity his whereabouts during the whole of said time and particularly (in answer to questions by the district attorney) for a short time before his arrest. The district attorney then called a witness in rebuttal, who testified without objection to his whereabouts just previous to his arrest, contradicting to a certain extent the testimony of Tolliver upon the same point. The district attorney then offered to show by this same witness that while walking about the streets for an hour or two before his arrest, Tolliver had assumed a disguised gait and manner. No evidence had been given by the defence upon this point, and Tolliver objected to the same, on the ground that it was not admissible at that stage of the case, not being in rebuttal; but the judge ruled that such testimony could be properly given although no testimony had been...
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