Commonwealth v. Hassan, 235 Mass. 26

Commonwealth v. Hassan

235 Mass. 26 | Mass. | 1920

Rugg, C. J.

The defendant was indicted jointly with one Suleman Hassan for the murder of Alii Hassan, a brother of the defendant. He was found guilty of manslaughter and Suleman Hassan was acquitted. There seems to have been little if any controversy at the trial concerning the fact that Alii Hassan was killed by the shot of a revolver feloniously fired by one of the *30■other of the two'persons indicted. Each attempted to put the blame upon the other.

During the argument of the district attorney, counsel for the defendant handed thirteen written requests for instructions to the clerk of the court, who presented them to the presiding judge. Counsel for the defendant neither said nor did anything further about the requests until after the charge, when he orally called the attention of the judge to his failure to give requests numbered 4, 7 and 13. The judge refused to consider them on the ground that they were not seasonably presented. No exception was taken to the charge in any particular, but exception was saved to the refusal to grant these three requests.

Comprehensive codes of rules of the Superior Court were adopted in 1859, 1874, 1886, 1900, 1906 and 1915. The first reference to the subject of requests for rulings appears in Rule 37 of those adopted in 1874. It is that “All requests for instructions shall be made in writing.” It appears in the same form in Rule 50 of the rules of 1886. In Rule 48 of the rules of 1900 words were added so that then it read, “All requests for instructions shall be made in writing before the closing arguments unless special leave is given to present further requests later.” In Rule 45 of the rules of 1906, the form is as follows: “Requests for instructions or for rulings in trials with or without jury shall be made in writing before the closing arguments unless special leave is given to present further requests later.” In the rules of 1915 substantially the same form occurs. The rules of 1915 alone of these several codes of rules appear by their terms to be restricted in operation to civil business of the court.

So far as we are aware, there never has been an express rule of the Supreme Judicial Court requiring requests for instructions to be in writing and handed to the presiding justice before arguments. It has been the established practice of this court for many years that no party as matter of right may present requests for instructions in any other way or at any other time than in writing and before arguments.

Before the adoption of any formal rule in the Superior Court, it had become the settled and recognized practice that requests for instructions could as matter of right be presented only before argument. As early as 1846, in Dole v. Thurlow, 12 Met. 157, *31at page 164, the practice was declared by Chief Justice Shaw to be that requests for rulings at the close of the charge were too late and that they ought to be presented in season at least to apprise adverse counsel of views of the law contended for. Manifestly this could be done only by bringing them forward before arguments. It was so stated' in express terms by Chief Justice Gray in Ela v. Cockshott, 119 Mass. 416, in 1876. In McMahon v. O’Connor, 137 Mass. 216, it was said by Mr. Justice Holmes in 1884 that “It is the undoubted right of parties to present requests for rulings and to have them passed upon. But the right is not infringed by requiring it to be exercised in a reasonable way.” Whether and how to deal with requests presented after the beginning of arguments was said according to settled practice to rest in the discretion of the trial judge. In Brick v. Bosworth, 162 Mass. 334, are found these words by Mr. Justice Knowlton: “a party must seasonably present a request in writing to the judge, and the ordinary rule of practice which has been approved by this court is that such a request must be made before the arguments.”

This salutary rule of practice prevails in the trial of criminal cases. It was recognized as relevant in Commonwealth v. Boutwell, 162 Mass. 230.

It is obviously reasonable that requests for instructions, if they are to be an aid in the administration of justice in the trial both of criminal and civil cases, ought to be presented before the arguments. It is eásential that the judge be given adequate opportunity to pass upon the soundness of requested rulings. In many cases it is of importance that counsel may know what is likely to be the instruction of the judge upon controverted questions of law, so that remarks to the jury may be shaped accordingly.

Even though the rule of court does not in terms relate to criminal cases, it should be adopted in such trials by analogy when applicable. Uniformity in practice is highly desirable so far as reasonably practicable. See Strout v. United Shoe Machinery Co. 215 Mass. 116, 119, and Renwick v. Macomber, 233 Mass. 530, 534. It is manifest from this review of decisions that the rule of the Superior Court respecting the time for presentation of requests for rulings aims at scarcely more than the embodiment of the general practice existing without express rule.

The rule of court and the general practice apart from rule do not *32prevent the presiding judge from receiving and passing upon requests presented at any time before the jury retire, if he elects to do so. But he is under no obligation so to do. Robertson v. Boston & Northern Street Railway, 190 Mass. 108. Pelatowski v. Black, 213 Mass. 428.

Doubtless in the trial of indictments charging crimes the judicial conscience would be peculiarly sensitive to see that no error of omission or of commission in his charge should go unremedied. But it would give ground for great abuses if requests for instructions could be presented as of right after the beginning of arguments.

The assumption may be indulged that the salient points of the case will be adequately covered by the charge; but if at its close, substantial omissions or errors are observed, the attention of the judge may be drawn to them, and upon refusal or neglect to give correct and adequate instructions upon important factors in the case, the right to exceptions thus adequately protects the rights of parties. Brick v. Bosworth, 162 Mass. 334, 338.

There was no error in refusing to receive the requests under the circumstances here disclosed. The charge was full and adequate, covering every issue in the case. No contention was made at its conclusion that it was incomplete upon any question raised at the trial.

If (without establishing any precedent for the future) the requests be considered on their merits, no error is shown. The fourth-request, to the effect that if the defendant under a reasonable belief that his brother was in immediate danger at the hand of Suleman Hassan, shot at the latter and by mistake killed his brother, he was not guilty, was not applicable to the evidence. Such an issue does not appear to have been tried. Plummer v. Boston Elevated Railway, 198 Mass. 499, 516. Commonwealth v. Boutwell, 162 Mass. 230, 232.

The seventh request was to the effect that failure of the defendant to explain the presence of cartridges in his shoe at the lower court trial could not be considered against him. Reliance is placed upon St. 1912, c. 325, which provides that failure to testify or to offer evidence in the lower court shall not be used as evidence against a defendant in the Superior Court or commented on by the district attorney or other prosecuting officer. No evidence *33appears to have been offered on the point, but counsel for Suleman Hassan, indicted jointly and tried with the defendant, made reference to the subject in his argument. If this was regarded as improper, the attention of the judge should have been called to it at once. Commonwealth v. Richmond, 207 Mass. 240, 250. London v. Bay State Street Railway, 231 Mass. 480, 486. Moreover, no argument whatsoever was made upon the point by the district attorney or prosecuting officer who alone is within the purview of the statute. It does not apply to arguments made in behalf of a co-defendant. Commonwealth v. Goldstein, 180 Mass. 374.

The thirteenth request that “Each juror shall render his own independent judgment and, although giving due consideration to the opinions of the other jurors, he shall not acquiesce in the same or be unduly influenced thereby,” manifestly was unsound and inapposite. Commonwealth v. Tuey, 8 Cush. 1. Highland Foundry Co. v. New York, New Haven, & Harford Railroad, 199 Mass. 403. Simmons v. Fish, 210 Mass. 563, 570, 571.

Exceptions overruled.