Commonwealth v. Goldberg

| Mass. | May 24, 1912

Sheldon, J.

We cannot say that the judge erred in admitting the written statements of Rothstein and Krasowski in connection with the answers made by the defendants when these written statements were read to them. The circumstances are Very similar to those which were considered in Commonwealth v. Spiropoulos, 208 Mass. 71,73; and the question was there so fully discussed that we need do no more than to refer to that case. But the charge of the judge with reference to this matter went further than was proper. The defendants were not under obligation to make any statement, and their failure to do so could not be considered against them. It was contended by the government that what they did say was not a bare refusal to make any statement or an unequivocal denial of the truth of what had. been said by Rothstein and Krasowski, but might be found to have been in substance an admission that they could not deny those statements, and that what was therein affirmed was true. This was the ground upon which the statements were competent to be received in evidence, and this presented the question which should have been submitted to the jury. Instead of doing so the judge left it to the jury to say whether the defendants, who were then under arrest upon the indictment, should have made a statement, and instructed the jury to see whether that consideration aided them in coming to a conclusion as to the guilt or innocence of the defendants. This was erroneous.

The government introduced evidence of the flight and avoidance of the defendants when they had been arrested and held to bail upon this charge in another State upon proceedings for their extradition. This evidence was competent and material. It might have been found to warrant the inference that it was because of their consciousness of guilt that they sought to avoid a trial. But for that very reason it was competent for them to show, if they could, that the reason of their avoidance was not a consciousness of guilt, but that it was due to some other cause consistent with their innocence, and to show what that cause was. This was in substance what they offered to prove, and they should have been allowed to do so. And as they made a general offer of proof to this effect and it was rejected, it does not matter that the judge rightly excluded the particular question which was put to Duggan in cross-examination before the offer of proof was made. Nor was the error cured by the fact that the defendants themselves afterwards testified as to the circumstances and occurrences which preceded their flight. The ruling made does not appear to have been modified or reversed.

The defendants had no right to have the minutes of the testimony taken before the grand jury, if there were such minutes,produced for their inspection, or to read them to the jury. The ruling excepted to went no further than this.

None of the other exceptions can be sustained. Most of them have not been argued and may be treated as waived.

Exceptions sustained.