170 Mass. 41 | Mass. | 1897
In regard to confessions, statements made in contemplation of death and the like, where there is a preliminary question of fact to be decided in order to determine the admissibility of the evidence in a criminal case, the practice is well settled in this State. The judge finds the fact in the first instance. If he is of opinion that the confession was not voluntary, or that when the declaration was made the speaker expected to recover, or, in general, that the preliminary facts were not such as to make the evidence admissible, he rejects it, and that is the end of the matter unless some question of law is reserved. Commonwealth v. Bishop, 165 Mass. 148, 152. If he finds the other way and is of opinion that the evidence is admissible, he admits it, but instructs the jury to disregard it if they do not agree with him. Commonwealth v. Preece, 140 Mass. 276, 277. Commonwealth v. Brewer, 164 Mass. 577, 582. Commonwealth v. Piper, 120 Mass. 185, 188. Compare Commonwealth v. Culver, 126 Mass. 464, 466. Of course the accused has the further safeguard of a right to except, and it may be that, in considering exceptions to the admission of confessions, courts have used a slightly greater latitude than in ordinary cases of a generally similar kind. For instance, it is said that, prima fade, confessions are voluntary; Commonwealth v. Sego, 125 Mass. 210, 213; and if so, there always is some evidence that they are admissible. Yet the appellate courts not infrequently hold them inadmissible. Commonwealth v. Nott, 135 Mass. 269. Commonwealth v. Myers, 160 Mass. 530, 532. See Commonwealth v. Morey, 1 Gray, 461, 463; Commonwealth v. Tuckerman, 10 Gray, 173, 191, 192; Commonwealth v. Flood, 152 Mass. 529; Com
In the case at bar, considering the boy’s capacity, there were strong reasons in the way in which he was treated for hesitating to accept his confession. Not to speak of the earlier examination, the manner in which the written confession was prepared deserves criticism, as every word of it was put into the boy’s mouth by one in whose power he probably seemed to himself to be. Nevertheless, it purports on its face to be made of his own free will, without hope of favor, and after he had been duly warned. The judge who tried the case and saw the parties was satisfied to let it in, and we must presume that the jury were of his opinion. We cannot say, as matter of law, that the admission of the evidence was wrong. See Commonwealth v. Wesley, 166 Mass. 248; Commonwealth v. Cuffee, 108 Mass. 285.
Exceptions overruled.
