234 Mass. 76 | Mass. | 1919
The defendants Cohen and Solomon, in January, 1919, were tried in the Superior Court on an indictment in two counts, the first charging them with breaking and entering a building in the night time with intent to commit larceny and that
At the trial the defendant Solomon “testified to material evidence in behalf of himself and the defendant Cohen which was offered by the defence for the purpose of establishing their innocence. ” During the cross-examination of the defendant Solomon the assistant district attorney offered, and the judge admitted, two records of his conviction in the Superior Cotut, one dated September 18, 1918, for violating a regulation of the board of street commissioners of the city of Boston, and the other dated October 25, 1912, for keeping a house of ill fame. These records were admitted for the purpose of affecting his credibility as a witness. St. 1914, c. 406. The second record was admitted subject to the exception of the defendants.
The offence of keeping a house of ill fame is punishable by imprisonment for not more than two years. R. L. c. 212, § 19. A felony is defined by statute as follows: “A crime which is punishable by death or imprisonment in the State prison is a felony. All other crimes are misdemeanors. ” It. L. c. 215, § 1. The minimum term of imprisonment in the State prison is for not less than two and one half years. It. L. c. 220, § 20. It follows that the offence of keeping a house of ill fame is a misdemeanor. No question is raised as to the admissibility of the record of the conviction of September 18, 1918. ■
Under R. L. c. 175, § 21, it was provided that “The conviction of a witness of a crime may be shown to affect his credibility.” Under this statute the conviction of a witness of any crime was admissible, whether it was of an offence which was a felony or a misdemeanor, and without reference to the time when such conviction occurred.
The Legislature by St. 1913, c. 81, amended the statute by striking out § 21 of R. L. c. 175, and inserting in place thereof a new section which provided in substance that the conviction of a witness of a felony might be shown (as formerly) to affect his credibility; but it also provided that the conviction of a witness of a misdemeanor should not be admissible to affect his credibility “unless the conviction was obtained within the period of
St. 1914, c. 406, provided that St. 1913, c. 81, is further amended by striking out § 21 and inserting in place thereof the following: “Section 21. The conviction of a witness of a crime may be shown to affect his credibility; but the'conviction of a witness of a misdemeanor, after the lapse of five years from the date of such conviction, and the conviction of a witness of a felony, after the lapse of fifteen years from the date of the expiration of his term of imprisonment therefor, shall not be shown to affect his credibility unless there has been a subsequent conviction of the witness within the above mentioned periods.” See St. 1919, c. 268.
It is the contention of the Commonwealth that the concluding words of the statute, “unless there has been a subsequent conviction of the witness within the above mentioned periods,” mean ■ within a period of five years prior to the time of testifying, in the case of a conviction of a misdemeanor. The record in the case at bar would have been admissible under St. 1913, c. 81. But the law as it existed under that statute was materially changed by St. 1914, c. 406, which was made applicable not only to a witness who had been convicted of a misdemeanor, but to one who had been convicted of a felony.
It seems plain that the words “within the above mentioned periods” refer in case of misdemeanors to the period defined as “five years from the date of such conviction,” and not to the period of five years from the time of testifying. We are of opinion that, construing the statute in the ordinary and usual sense of the language there found, the subsequent conviction must have occurred within five years from the date of the one sought to be introduced in evidence, to render the latter competent under the statute. The evident intention of the Legislature as expressed in the later statute was to declare that a record of the conviction of a witness of a misdemeanor should not be admissible to affect his credibility, if for five years thereafter his conduct was such that he had not been convicted of a crime.
As the second conviction did not occur within five years from the date of the first conviction in October, 1912, the record of the
Exceptions sustained.
