Forcier v. Hopkins

• Decision Date: 08 January 1953
• Citation: 110 N.E.2d 126,329 Mass. 668
• Parties: FORCIER v. HOPKINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 126

110 N.E.2d 126

329 Mass. 668

FORCIER v. HOPKINS.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 22, 1952.

Decided Jan. 8, 1953.

Thomas M. Dolling, Fitchburg, Max L. Rubin, Boston, for the plaintiff.

Stanley B. Milton, Worcester, Robert C. Milton, Worcester, for the defendant.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

WILLIAMS, Justice.

This is an action of tort for personal injury and property damage resulting from a collision of automobiles operated respectively by the plaintiff and the defendant. There was a verdict for the defendant. The plaintiff's exceptions, which are before us, relate principally to a matter of evidence. In cross-examination of the plaintiff, who had testified in his own behalf, counsel for the defendant offered the records of two convictions of the plaintiff of misdemeanors committed in 1951. The first record was that of a complaint for assault on which the plaintiff was found guilty in the District Court and given a sentence in the house of correction for six months, which sentence was suspended for two years and the plaintiff placed on probation. The second record was that of a complaint for being a lewd person on which the plaintiff was found guilty in the District Court and sentenced to four months in the house of correction, which sentence was suspended for a year and the plaintiff placed on probation. Both records were admitted in evidence subject to the exceptions of the plaintiff and the jury were instructed that they were in evidence 'solely to affect the credibility of the plaintiff as a witness.' The plaintiff also excepted to a ruling of the judge permitting the records to be taken into the jury room.

Under G.L. (Ter.Ed.) c. 233, § 21, it is provided that 'The conviction of a witness of a crime may be shown to affect his credibility'. Prior to the amendment of this section by St. 1950, c. 426, the statute made the admissibility of records of conviction subject to the following exceptions: 'First, The record of his conviction of a misdemeanor shall not be shown for such purpose after five years from the date on which sentence on said conviction was imposed, unless he has subsequently been convicted of a crime within five years of the time of his testifying. Second, The record of his conviction of a felony upon which a fine only was imposed, or a sentence to a reformatory prison, jail, or house of correction, shall not be shown for such purpose after ten years from the date on which sentence on said conviction was imposed unless he has subsequently been convicted of a crime within ten years of the time of his testifying. Third, The record of his conviction of a felony upon which a state prison sentence was imposed shall not be shown for such purpose after ten years from the date of expiration of the minimum term of imprisonment imposed by the court, unless he has subsequently been convicted of a crime within ten years of the time of his testifying.' Paragraph 'Second' was stricken out by the 1950 statute and the following paragraph inserted in its place: 'Second, The record of his conviction of a felony upon which no sentence was imposed or a sentence was imposed and the execution thereof suspended, or upon which a fine only was imposed, or a sentence to a reformatory prison, jail, or house of correction, shall not be shown for such purpose after ten years from the date of conviction, if no sentence was imposed, or from the date on which sentence on said conviction was imposed, whether the execution thereof was suspended or not, unless he has subsequently been convicted of a crime within ten years of the time of his testifying. For the purpose of this paragraph, a plea of guilty or a finding or verdict of guilty shall constitute a conviction within the meaning of this section.'

The plaintiff contends, first, that by specifically providing in the substituted paragraph for the admission in evidence of the record of conviction of a felony where the sentence was suspended, the Legislature impliedly intended to make inadmissible the record of conviction of a misdmeanor where similarly the sentence was suspended; and, second, that a sentence which has been suspended is not a final judgment and, therefore, the record of it is not admissible. Since the enactment of St. 1852, c. 312, § 60, on which G.L. (Ter.Ed.) c. 233, § 21, is based, this court has held consistently that the term 'conviction' as used in the statute means a judgment that conclusively establishes guilt after a...