Commonwealth v. Walsh

• Citation: 82 N.E. 19,196 Mass. 369
• Parties: COMMONWEALTH v. WALSH.
• Decision Date: 15 October 1907
• Court: United States State Supreme Judicial Court of Massachusetts

196 Mass. 369

82 N.E. 19

COMMONWEALTH v. WALSH.

Supreme Judicial Court of Massachusetts, Worcester.

October 15, 1907

COUNSEL

George S. Taft, Dist. Atty., and Ernest I. Morgan, Asst. Dist Atty., for the Commonwealth.

John F McGrath, for defendant.

OPINION

RUGG J.

The defendant was tried upon a complaint for the illegal selling of intoxicating liquors. He offered himself as a witness in his own defense, and in cross-examination was asked 'Have you ever been convicted of illegally keeping intoxicating liquor for sale?' The defendant was compelled to answer the question, and replied in the affirmative. His exception to this ruling brings the case here.

In Commonwealth v. Quinn, 5 Gray (Mass.) 478, and Commonwealth v. Sullivan, 161 Mass. 59, 36 N.E. 583, questions were asked of witnesses other than the defendant, which were treated as an attempt to prove a conviction of crime, on cross-examination and without the production of the record, for the purpose of affecting their credibility. It was said in the first case that the question was improperly put to the witness, for the reason that it 'involved the fact of a previous conviction, which could only be proved by record,' and this decision was followed in the second case. The same practice apparently has been assumed to apply as well to a party offering himself as a witness in his own behalf as to other witnesses in Commonwealth v. Green, 17 Mass. 515-537, Gertz v. Fitchburg R. R. Co., 137 Mass. 77, 50 Am. Rep. 285, Commonwealth v. Ford, 146 Mass. 131, 15 N.E. 153, Lamoureux v. N. Y., N.H. & H. R. R. Co., 169 Mass. 338, 47 N.E. 1009, and Commonwealth v. Quigley, 170 Mass. 14, 48 N.E. 782. This was early held to be the law in England. Rex v. Castell Careinion, 8 East, 77. It has been argued in behalf of the commonwealth that the rule should not be applied to parties, but should be confined to witnesses not parties. No such distinction can be drawn from the language of the statute. Rev. Laws, c. 175, §§ 20, 21. It is clear that the defendant in a criminal case is comprehended within the word 'witness' as used in both sections.

It is next urged that these decisions should be overruled and the rule established permitting proof of such conviction by a cross-examination of the witness. State v. Bartlett, 98 Me. 432, 57 A. 588, McGovern v. Hays, 75 Vt. 104 53 A. 326, McLaughlin v. Mencke, 80 Md. 83, 30 A. 603, Clemens v. Conrad, 19 Mich. 170, and State v. Babcock, 25 R.I. 224, 55 A. 685, are cited as authorities in support of this contention. The Massachusetts rule is supported by Hall v. Brown, 30 Conn. 551, Kirschner v. State, 9 Wis. 140, and Newcomb v. Griswold, 24 N.Y. 298. We see no sufficient reason for overruling Commonwealth v. Quinn, ubi supra. It has been an established...