Commonwealth v. Fortier
155 N.E. 8
Mass.
1927
Check Treatment
Rtjgg, C.J.

Thе defendant was tried upon a complaint charging him with operating an automobile on a way while under the influence of intoxicating liquor, and further charging him on a named date before a specified court with having been previously сonvicted of operating an automobile under the influence of intoxicating liquor.

The allegation in the comрlaint of prior conviction of the same offence, entailing as it does under G. L. c. 90, § 24, as amended by St. 1924, c. 183, a more severe sentence ‍‌​‌‌​‌‌‌‌​​‌‌​​‌​​‌‌​‌​​​​​‌‌‌‌​​​‌‌​​​​​‌​​‌‌‌​‍in the event of conviction than is required for a first offence, made the former convictiоn a part of the essential description and character of the offence charged. Commonwealth v. Harrington, 130 Mass. 35. Commonwealth v. Holley, 3 Gray, 458. Walsh v. Commonwealth, 224 Mass. 39, 40.

No record оf conviction of the prior offence was in evidence. The defendant offered himself as a witness in his own behalf, аnd subject to his own exception testified on cross-examination that he pleaded guilty to a charge of the рrior offence as charged in the complaint and paid a fine in a court of competent jurisdiction in this Commonwealth. The question is, whether the admission of this testimony was competent over the defendant’s objection. The contention of the defendant is that such prior conviction could have been shown only by the record of the court whеrein he was convicted and not by his own testimony received subject to his exception. This question has never arisen fоr decision in this Commonwealth.

It is the settled rule that, although a defendant in a criminal proceeding cannot be compelled to give evidence against himself, yet, when at his own request he becomes a witness in his own behalf, he may be cross-examined at large and may be ‍‌​‌‌​‌‌‌‌​​‌‌​​‌​​‌‌​‌​​​​​‌‌‌‌​​​‌‌​​​​​‌​​‌‌‌​‍questioned as to all matters relevant to the charge against him. Whatever hе has said or done, or omitted to say or do, having a legitimate bearing on his guilt, may be the rightful subject of interrogation while he is on the witness stand. Commonwealth v. Smith, 163 Mass. 411, 431, and cases collected. Commonwealth v. Johnson, *101175 Mass. 152, 153. Commonwealth v. Tolliver, 119 Mass. 312, 315. It is not open to doubt that, if the defendant had pleaded guilty to the complaint, such plea would have covered every element charged therein and that the court might have proceeded to sentenсe without further proof of the prior conviction. It is equally clear that, when made out of court, a confessiоn by the defendant of the offence charged in the complaint, or an admission by him, of that part of the complaint relating to the earlier offence, would have been admissible in evidence against him without the production of thе record. The prior conviction in the case at bar was set out at length in the complaint. It thus was “fully and plainly, substantially and formally, described.” Art. 12 of the Declaration of Rights. The defendant was given ample notice that he was charged with such prior conviction. There was no possibility of surprise. The conviction was for an offence of the same nature as the new matter set out in the complaint. In these circumstances it was a subject about which the defendant may be presumed to have accurate knowledge. It is a general rule that the best evidence must be produced, or its absence accounted for. But, as already suggested, in criminal cases plea of guilty, confession, оr admission is accepted under the rules of law as doing away with necessity of record evidence. So far as сoncerns evidence of guilt, there is no sound distinction in principle between a confession or an admission by onе charged with crime made outside of court and a confession or an admission made on the witness stand when one сharged with crime offers himself as a witness. The reference to “confession of the party” in St. 1817, c. 176, § 6, as one method of showing prior conviction, seems to have been declaratory of the common law rather than a new method of proof. Ross’s Case, 2 Pick. 165. Plumbly v. Commonwealth, 2 Met. 413. See Commonwealth v. Richardson, 175 Mass. 202. The defendants in criminal causes could not be ‍‌​‌‌​‌‌‌‌​​‌‌​​‌​​‌‌​‌​​​​​‌‌‌‌​​​‌‌​​​​​‌​​‌‌‌​‍witnesses until the passage of St. 1866, c. 260.

The chief reliance of the defendant is upon Commonwealth v. Walsh, 196 Mass. 369, followed in Commonwealth v. Danton, 243 Mass. 552, and Commonwealth v. Hayes, 253 Mass. *102541, where it was held, following a line of earlier decisions, that when it was sought to affect the credibility of a witness, whether a defendant or not, by shоwing that he had been convicted of crime, the record of the court must be produced and the fact cannоt be shown by interrogation of the witness. The decision in Commonwealth v. Walsh confessedly was founded on precedent and the court declined to overrule earlier adjudications. We are not inclined to extend that principle to cases not within its terms although more or less analogous. That class of cases, while perhaps not widely divergent from the case at bar, is nevertheless distinguishable. When a cross-examiner ‍‌​‌‌​‌‌‌‌​​‌‌​​‌​​‌‌​‌​​​​​‌‌‌‌​​​‌‌​​​​​‌​​‌‌‌​‍attacks the credibility of a witness, there is reason in holding him to some degree of strictness in proof. A defendant in a criminal case volunteers as a witness and cannot be compelled to testify. Plea of guilty, confession, and admission are terms frequently used and well understood in the criminal law. Commonwealth v. Haywood, 247 Mass. 16, 18. They havе no relevancy to a witness whose credibility is sought to be affected by showing conviction of crime. They are applicable to a defendant charged with crime. They involve in appropriate instances the establishment of the fact of prior conviction of a defendant without production of the record.

It is to be observed that thе rights of the defendant were carefully guarded. He was not asked ‍‌​‌‌​‌‌‌‌​​‌‌​​‌​​‌‌​‌​​​​​‌‌‌‌​​​‌‌​​​​​‌​​‌‌‌​‍whether he had been convicted. The word conviсtion has a technically exact meaning, Attorney General v. Pelletier, 240 Mass. 264, 310, 311, which possibly a witness or defendant might not understand. The questions directed to thе defendant elicited' the facts of plea of guilty and of payment of fine, facts which could not be misconceived by any defendant and which connote the final judgment of conviction. The conclusion is that there was no error in the admission of the evidence.

Exceptions overruled.