Commonwealth v. Retkovitz, 222 Mass. 245

Commonwealth v. Retkovitz

222 Mass. 245 | Mass. | 1915

Rugg, C. J.

1. The photographs of the neck and face of the dead woman, Domka Peremebida, for the murder of whom the defendant was on trial, rightly were admitted in evidence. It is not contended that they were not genuine and correct. They well might aid the jury in understanding the nature of the mortal wound. Commonwealth v. Tucker, 189 Mass. 457, 476, 477. It does not appear that their admission tended to inflame the jury *249against the defendant or to prejudice him in any way. Natural abhorrence of a crime such as that charged in the indictment was an inevitable incident of the trial. Competent and material evidence is not to be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible. Commonwealth v. Johnson, 199 Mass. 55. Hubbard v. Allyn, 200 Mass. 166, 171. There is no suggestion that adequate instructions were not given.

2. Certain conversations between the woman alleged to have been murdered and police officers, in the presence of the defendant, tending to show his hostility toward her and his threats of violence to her about forty-four days before the homicide, properly were received in evidence. It always is relevant to show relations of enmity between an alleged murderer and his victim within a reasonable time before the homicide. Evidence covering a far longer period than in the case at bar has been held to be admissible. Commonwealth v. Quinn, 150 Mass. 401. Commonwealth v. Holmes, 157 Mass. 233.

3. There was evidence that the defendant had threatened to shoot the woman; and a revolver, which at‘the time he was arrested was found under the stairs of the first floor of the house, on an upper floor of which he had a room, was admitted in evidence. In this there was no error. Whether the revolver was under the control of the defendant and whether, if so, this indicated ill will toward the dead woman and preparation to do injury to her, were material questions for the consideration of the jury.

4. Two witnesses, the Belfords, called by the Commonwealth testified that they saw the defendant near the house of Domka Peremebida a short time before her death. The counsel for the defendant stated, after cross-examination, in substance that he intended to show, if he could, that these witnesses had concealed the facts, or that they were unduly influenced to testify as they did, or that their testimony was a recent contrivance. Thereupon the Commonwealth was permitted, without objection, to call a witness, Yiolette, to show that these two witnesses had made statements soon after the homicide similar to those given by them in testimony. Upon this posture of the case such testimony was competent.

The mere fact that a witness has made statements on other oc*250casions at variance with testimony given in court does not warrant the introducing of confirmatory evidence to the effect that he has given an account of the transaction at still other times in harmony with his sworn testimony. A party may, for the purpose of discrediting an opponent’s witness, show that he has given two inconsistent narrations of the same affair, one of which was necessarily untrue. As is pointed out with clearness by Bigelow, J., in Commonwealth v. Jenkins, 10 Gray, 485, 488, when this is the state of the evidence it by no means relieves the witness of the distrust thus cast upon him to prove that the story last told was similar to an earlier version given by the witness. The two inconsistent statements still remain. Hence, under these circumstances, such corroborating evidence is inadmissible. This is the general rule. But there is an exception where the contention is made that the testimony of a witness is given under a bias or undue influence arising from some late occurrence subsequent to the main event, is a recent contrivance, or that the facts described in testimony previously have been concealed under conditions which warrant the belief that, if they were true, the witness would have been likely to have revealed them. In such a situation, evidence that the witness at earlier times before the intervention of these pernicious impulses had made statements like those given in court has a legitimate tendency to impugn the existence of these factors as operating causes to produce.the testimony and thus to fortify his testimony, and therefore should be admitted. The exception to the general rule is a narrow one and is not to be extended; but, when the contentions of the parties give rise to its application, it is well established. Griffin v. Boston, 188 Mass. 475. Brown v. Brown, 208 Mass. 290. See for a full discussion of all the principles, Commonwealth v. Tucker, 189 Mass. 457, 479 to 485.

Another witness named Medley was called for the same purpose, when the defendant objected to the testimony on the ground that the Commonwealth could not introduce such evidence to support and strengthen the statements of its own witnesses and that such evidence was hearsay. Then occurred the following colloquy:

The Court: “That is the usual rule, that it isn’t admissible. But where it is claimed that a party has concealed the facts, or *251has been unduly influenced to testify as to what he did, I suppose it is admissible.”

Mr. ICenney (District Attorney): “Or tells a different story afterwards.”

The Court: "Well, merely telling a different story wouldn’t make any difference. It must be a matter of concealment or a matter of bias or influence. It was admitted in the Tucker case on the ground of influence, it was claimed. In other cases it 'has been admitted on the ground that it is claimed that the witnesses have concealed the facts; and I suppose it is going to be claimed here that they concealed the facts, or were unduly influenced.”

It is manifest that the court understood exactly and stated with precision the governing rule of law. Thereupon it was said by the defendant’s counsel:

“All I am going to do in this case is contradict Mr. Belford’s own testimony; that is what I am going to do. They have denied certain questions and statements put to them, and I am going to offset that, if I can, by evidence. Now why, because I intend to do that, can Mr. Medley or Mr. Violette or anybody else come in here and give a statement made to them by the Belfords, simply to corroborate the Belfords’ testimony? I can’t see how that is admissible.”

The Court: “If you claim that the statements of the Belfords is a matter of recent contrivance, or if you claim that they have concealed facts, or that they are unduly influenced, then, the statement made to the assistant marshal is admissible. Now, 'if you don’t make such a claim, that it is of recent contrivance, or that they have concealed facts or that they are unduly influenced, that is one thing. Those are the three exceptions, as I understand it, to the rule. Ordinarily the government isn’t allowed to put in evidence of what witnesses have said to a police officer, prosecuting officer or other persons; the exceptions are those three that I have mentioned. Now, you are not obliged to waive them. If you say that you will make no such claim, why, that is another question; but the evidence was admitted before.”

Mr. Silvia (the defendant’s counsel): “Well, I was going to ask that the evidence be stricken out.”

Mr. Kenney: “In answer to his honor’s question, you told *252what you were going to do, and your questions all tend to show that you were going to do that.”

Mr. Silvia: "Very well, I claim, what I am going to try to show is, that Jacob Belford is not telling the truth.”

The Court: "When I asked you if you were going to claim that he concealed the facts, or if it was a matter of recent contrivance, or he was unduly biased or influenced, you substantially acquiesced in what I said; and I said the evidence was admissible. Now, a different position cannot be taken now.”

Mr. Silvia: “Well then, I will save my rights, if your honor please.”

The Court: “Yes.”

The substance of this discussion seems to be that the defendant withdrew from his earlier position, which was that he should contend that the testimony of the Belfords was either a recent contrivance, or was given under undue influence, or that the facts had previously been concealed, and took instead the simple ground that he should contradict Belford’s testimony. This was a change of attitude as to a material aspect of the trial. That it was so understood by the judge is apparent from his ruling that "a different position cannot be taken now.” This change of position is emphasized by the fact that a moment later the defendant’s counsel moved to have stricken out the earlier evidence of the witness Violette and excepted to the denial of the motion. There is nothing to indicate that the Commonwealth was likely to be harmed by this change of attitude. No evidence had gone in upon the strength of the contention first advanced by the defendant, which for any reason rendered it unjust later to make a different contention. There was no such vacillation in the conduct of the defence as warranted the court in making any definite direction for the conduct of the trial, as for example, that a final election could not be made until the evidence was closed. Indeed, this was not attempted by the court. A bald ruling was made that the defendant could not thus shift his ground during the trial. We are not able to construe the ruling as meaning anything else. The situation is in no wise different from the not unusual practice of withdrawing certain counts in an indictment after evidence in their support has been introduced. Commonwealth v. Cody, 165 Mass. 133, 138. It was said in Anthony v. Trams, 148 Mass. 53, *25359, 60, “Where a defendant has set up two distinct defences, the fact that evidence has been admitted upon one defence which the court holds to be untenable, will not necessarily deprive the party of the right to maintain the other because evidence irrelevant thereto was admitted in connection with the first defence.” While it well may be that counsel cannot change at will every position deliberately taken by them during the trial, it cannot be said in the case at bar that there was any reason why the counsel for the defendant might not make the change for which he asked leave. No final election was made. See Corbett v. Boston & Maine Railroad, 219 Mass. 351, 357. The defendant’s exception in this regard must be sustained. Although it has been suggested in argument that the defendant’s change of position related solely to the testimony of Jacob Belford, the ruling of the judge also may be said to relate to him. If any difference was made between the two Belford witnesses by the defendant, the same difference exists as to the ruling.

5. The fact that the counsel for the defendant, in his closing argument to the jury, contended that the testimony of the Belfords was a recent invention and hence not worthy of credence, is of no consequence. The earlier adverse ruling had become the law of the trial and it was his right to use that ruling in any legitimate way for his own advantage.

6. There was no error in allowing the assistant marshal of the city to testify as to his reasons for giving certain instructions to the Belfords. It was stated by the court without objection or contradiction, that the defendant’s cross-examination of a fellow officer had shown that the defendant would endeavor to show that the instructions had been given with a purpose to hide the truth and keep the facts from the defendant. This must be assumed to have been an accurate statement. Therefore, it was competent for the Commonwealth to show what the real reason was. Merritt v. New York, New Haven, & Hartford Railroad, 162 Mass. 326. Lynch v. Coffin, 131 Mass. 311.

Exceptions sustained.