162 Mass. 499 | Mass. | 1895
The defendant was tried upon an indictment charging him with the offence of receiving stolen goods, and was defended by counsel. After the close of the evidence for the prosecution, the defendant’s wife and one Sullivan were sworn for the defence, and counsel then stated that the defendant did not wish to testify, but wished to make a statement to the jury before the introduction of the testimony of his witnesses, and saying that the testimony would be better understood and appreciated after the defendant’s personal statement, moved that the defendant might be allowed to make his own statement at the outset, and as prefatory to the testimony to be submitted in his
The district attorney, in his closing argument, began to explain to the jury how the statement of the defendant differed from testimony, the prosecution having had no opportunity to cross-examine the defendant. To this explanation the defendant excepted ; whereupon the district attorney ceased to remark upon the subject, withdrew what he had said with reference to it, and asked the jury not to consider what he had said; and no further allusion was made thereto.
The defendant now contends that he had an absolute right to make the unsworn statement as a part of his defence, and to introduce it as prefatory to the testimony of his witnesses, and that it was error for the court to compel him to postpone and to subordinate his personal statement to the testimony of the other witnesses, and to allow an interruption of his statement by the interpolation of evidence in contradiction of his witnesses; and also that the comment of the district attorney was a serious error, which, in the absence of appropriate instructions, was not cured by the withdrawal of the remarks.
There was also an exception to the refusal to strike out such of the testimony as related to articles included among the stolen goods and not produced at the trial; but this exception was not argued, and is waived.
It is evident from this statement of the case that the trial was in several respects irregularly conducted; but we find no error prejudicial to the defendant, and his exceptions must be overruled.
He relies upon the following cases: Rex v. O' Coigly, 26 How.
In capital trials in this Commonwealth a somewhat similar practice has prevailed, and it is not modified or abandoned in cases where the prisoner avails himself of his right to give testimony in his own behalf. But the practice as to the time of the •statement has been uniform, and the proper time is after the arguments of both counsel, and immediately before the charge to the jury. In other than capital cases, when the prisoner is defended by counsel, so far as we have personal knowledge of
The defendant in the present case had no right to make a statement of fact to the jury except under the statute allowing him to testify as a witness in his own behalf, and he was not aggrieved by any action of the court with reference to the statement which he asked leave to make, and which he finally did make. On the other hand, it was an error to allow him to make it at all; but of this error he cannot complain.
Having been allowed to make an unsworn statement of facts to the jury, the defendant had no ground to object to the line of argument commenced by the district attorney, but which the latter withdrew upon the defendant’s objection. The bill of exceptions does not show that the comment was upon the failure of the defendant to testify, but that it was upon the weight to be given to his unsworn statement. This was a legitimate matter for argument; and comment upon the absence of that test of the truth of statements which is furnished by cross-examination was pertinent. The defendant implies, by the language of his brief, that the comment was upon his failure to testify, and that instructions upon this point should have been given to the jury. If such is the proper construction of the bill of exceptions, yet it appears that no such instructions were asked. No exception was taken to any order or ruling of the presiding'judge, nor was he asked to take the case from the jury. The exception taken was to an observation of the district attorney; and the only request made to the presiding justice was that he would note the defendant’s objection and exception to that observation.
.Exceptions overruled.