Commonwealth v. LeachCommonwealth v. Leach
- Reporters:
- , ,
- Before:
- Allen
Thе defendant at the former trial was convicted оn the first count of the indictment, and acquitted upon thе second and third counts. A new trial having been granted, sоme difference of opinion has been exрressed elsewhere upon the question whether a defendant under such circumstances could rightly be placed on trial again on the second and third сounts. 1 Bish.‘Crim. Law, (8th ed.) §§ 1004, 1005. Assuming that he could not be, the proseсution of those counts in the present case wаs abandoned before the arguments to the jury, and the judge in his charge to the jury informed them that no claim was made of a conviction upon those counts, and that they might return a verdict of not guilty upon them, which the jury accordingly did. No evidence was introduced on either side except such as was competent and material on the first count. If it was erroneоus to put the defendant to trial upon those cоunts, the error was cured by the abandonment of them, and by the verdict, and we cannot see that .he was in any way prejudiced. Many decisions illustrate this, though upon slightly different facts. Commonwealth v. Packard, 5 Gray, 101. Commonwealth v. Lincoln, 9 Gray, 288. Commonwealth v. Chase, 127 Mass. 7. Commonwealth v. Adams, 127 Mass. 15. Commonwealth v. Andrews, 132 Mass. 263. Commonwealth v. Boston & Maine Railroad, 133 Mass. 383. Commonwealth v. Miller, 150 Mass. 69. Commonwealth v. Jacobs, 152 Mass. 276. Commonwealth v. Meserve, 154 Mass. 64, 69. Commonwealth v. Lapham, 156 Mass. 480. Commonwealth v. Bingham, 158 Mass. 169.
The instructions to the jury upon the matters embraced in the first two requests for instructions were сlear and sufficient. *551The judge told them that the proоf must establish the charge beyond all reasonable doubt; that a well grounded suspicion was not enough, no matter how strong the suspicion might be; that something more must be shown than a probability of guilt, however strong that might be; and reasonable doubt and moral certainty were carefully explained. The remarks upon thе nature of circumstantial evidence went as far as the law required, and it was not necessary to adopt the words used by counsel. The judge also clеarly instructed the jury that the defendant was not bound to prove his innocence, or to disprove the charge against him. The greater part of the third requеst was given in terms. The first part of it, and also the request аfter the conclusion of the charge, were рlainly wrong. They went too far. It was not necessary for the government to prove that the criminal act could not have been done by anybody else than the defendant, or that no other person than thе defendant had an opportunity to do it. Many honеst persons, against whom no suspicion existed, might have been able to do it, and have had an opрortunity to do it. In order to prove that the defendаnt committed a crime, it is not necessary to show thаt it could not have been committed by anybody elsе, or that nobody else had an opportunity to commit it. All of the defendant’s rights were preserved by the instructions to the jury.
Exceptions overruled.