Commonwealth v. Scott, 123 Mass. 222

123 Mass. 222 | Mass. | 1877

Morton, J.

The questions raised in this case are numerous, and it will be convenient to consider them in the order in which, they are stated in the bill of exceptions.

1. It is well settled in this Commonwealth that while, as a general rule, the district attorney or other prosecuting officer should conduct the trial of criminal cases, yet it is within the power of the court in particular cases, in which from peculiar circumstances the interests of public justice seem to require it, to appoint a counsellor of the court to assist the public officer in the trial. The rule and its limitations are stated in Commonwealth v. Williams, 2 Cush. 582. See also Commonwealth v. Knapp, 10 Pick. 477; Commonwealth v. Gibbs, 4 Gray, 146; Commonwealth v. King, 8 Gray, 501. The questions, whether in a particular case the circumstances are such as to justify such appointment, and whether the person, whom the district attorney requests the court to appoint, is a fit and proper person, are necessarily to be decided, in the first instance, by the presiding justice, and the decision of them is, to a large degree, within his sound discretion.

The case at bar was one of great complication and difficulty, and nothing appears in the bill of exceptions which shows any error in the decision of the presiding justice to appoint a suitable person to assist the district attorney; and the evidence was sufficient to justify him in finding that Mr. Gillett was acting without any assurance or expectation of compensation from any private person and was a suitable person to appoint. The appointment was made at the request of the district attorney, who retained the responsible management of the case, and we are of opinion that the defendants’ exception thereto cannot be sustained.

2. The court properly ruled that it was not competent for the defendant Scott to prove what was his usual and natural voice, by using his voice in the court-room “to repeat something,” when not under oath as a witness. His manner of speaking being in question, there was no way of determining whether he would use his voice in the court-room in his natural or in a constrained and simulated manner, the genuineness of the voice used not being supported by his oath. King v. Donahue, 110 Mass. 155.

3. It was clearly competent for the government to show the whole history of the robbery with which the defendants were charged, from the inception of the scheme by them to its final consummation. The evidence excepted to tends to show the beginning of the plot or scheme of this robbery in the summer of 1875. Thp fact of the general conspiracy, formed in 1873, was so connected with this scheme as to make it competent. It tended to explain and make intelligible the testimony of Edson as to the beginning of this scheme, as it accounts for the fact of his reporting to the defendants at Wilkes barre, and furnishing them with the means of duplicating the keys of the vault lock.

The defendants’ chief objection to this evidence is, that its ad mission violates the established rule that evidence which merely tends to prove that the defendants have committed other similar offences is inadmissible. But the evidence was competent as tending to prove the crime charged, and it is not rendered incompetent because it also tends to prove the commission of other crimes. Commonwealth v. Choate, 105 Mass. 451.

4. For the same reasons the testimony of Edson, as to the acts of the defendants and their co-conspirators in making preparations for carrying out the robbery, was competent.

The evidence tended to show, and the jury were justified in finding, that the plot or scheme of this robbery was formed in the summer of 1875, and that, though its execution was suspended during the months of October and November, it was never abandoned but resumed and conducted to a successful issue in the January following. All the acts of the defendants and their co-conspirators in the execution of the plot were therefore admissible.

5. There being evidence sufficient to be laid before the jury to prove the conspiracy, as to which the presiding justice was in the first instance to determine, it was competent for the government to put in evidence any acts of the several conspirators in furtherance of the common purpose of the conspiracy, either before or after the robbery was committed. Commonwealth v. Brown, 14 Gray, 419. Accordingly, Edson testified, without objection, that a few days after the robbery he met the defendants and Connor, who with Edson were the conspirators, in New York, on business connected with the robbery, and that the others then paid Edson $1,200 as his portion of the money stolen from the bank. But Edson was allowed to testify, against the defendants’ objection, that the conspirators had previously arranged for calling such meetings by means of advertisements in the New York Herald, called “ personals,” and that this meeting was called by a “personal” inserted by him as follows “ Idalia, F. N., meet me on the avenue Monday evening,” and that Connor replied by a “personal ” as follows: “Idalia, F. N., 8 sharp.” To the testimony of Edson as to the “ personals ” and to the introduction of the paper containing them, the defendants excepted. But the insertion of these “ personals ” were acts of two of the conspirators in carrying out the purposes of the conspiracy and. were thus competent against the defendants. The newspaper was the best evidence of their insertion, and was important to fix the date of the meeting.

6. For the same reasons the “personal ” “ Knox, come home,” inserted in the New York Herald to warn Scott of danger in his visit to Northampton for the purpose of bringing to New York the securities stolen from the bank, was competent. It was an act of two of the conspirators, tending to show that the robbery had been committed in pursuance of the conspiracy, and it is immaterial whether Scott saw it or not. So, also, any declarations or admissions of Connor, having this tendency, were competent, he having been shown to be one of the conspirators. This being so, the defendants cannot complain of the order of the court that all such declarations of Connor which Edson had testified to should be considered as in the case subject to the defendants’ exception, or that all should be withdrawn, or of the subsequent ruling and instruction that all such conversations should be disregarded by the jury. All the conversations being competent, the ruling was too favorable to the defendants, and they were not aggrieved thereby. It does not present the case, as argued by the defendants, where the presiding justice has admitted incompetent evidence, and afterwards directed it to be stricken out and disregarded; and we need not consider whether, if such had been the aspect of the case, justice would require that a new trial should be ordered.

7. For the reasons stated above, the fact that Williams, one uf the directors of the bank, met Connor, and had negotiations with him relative to the return of the stolen property, was competent, and the fact that Edson took him to see Connor was admissible as a part of the transaction, and as tending to corroborate Edson’s testimony that he and Connor were members of the conspiracy.

8. The testimony of Hall, that about two days before the robbery he sold to two men in Springfield a pair of drawers and some socks like those left by the robbers in the cashier’s house, was competent. There was evidence in the case tending to show that these two men were the defendants. The testimony of Hall was thus sufficiently connected with the defendants to entitle it to go to the jury, who alone were the judges of its weight.

9. The ninth exception is the same as the seventh, and is governed by the same principles.

10. Edson testified, without objection, that in August preceding the robbery he met the defendant Dunlap at Wilkesbarre for the purpose of conferring together in regard to the robbery. The government introduced, against the defendants’ objection, the register of the Wyoming Valley House of Wilkesbarre, and Edson testified to his own signature thereon, under date of August 5, 1875, and that of Dunlap, under the assumed name of R. C. Hill. If there is doubt of the admissibility of this evidence upon other grounds, it was competent for the purpose of fixing the time when the interview took place.

11. The only remaining exception is that taken to the instructions of the court in regard to the corroboration of the witness Edson, and to the refusal to give the instruction requested, on this subject.

The government contended, and the bill of exceptions, though it does not purport to give all the evidence, shows, that there was evidence corroborating the part of the narration of Edson, which connected the defendants with the robbery, as well as the other parts.

We are of opinion that the court was not required, as matter of law, to give the instruction requested, and that the instructions given are not open to exception by the defendants.

It is well settled that a jury may convict upon the uncorroborated testimony of an accomplice, if it satisfies them beyond reasonable doubt of the guilt of the defendant. But it is the usual practice for the judge to advise the jury to acquit where there is no evidence other than the uncorroborated testimony of an accomplice.

If it can be held that this rule of practice, because of its uniformity, has acquired the force of a rule of law, still there is not the same uniformity in the practice as to the kind of corroboration required. The office of corroborative evidence is, by confirming the testimony of the accomplice in regard to matters which are not within the general knowledge but likely to be known only to those engaged in the crime, to induce the belief that he is to be generally credited in his statements. Its weight is for the jury, and there is no established rule of law which requires the judge, in a case where there is corroborative evidence of this character upon matters material to the issue, to advise the jury to acquit unless there is also corroboration of the statements connecting the defendant with the crime.

In Commonwealth v. Bosworth, 22 Pick. 397, the court say, as to the kind of corroboration required: “ It is perfectly clear that it need not extend to the whole testimony; but, it being shown that the accomplice has testified truly in some particulars, the jury may infer that he has in others. But what amounts to corroboration ? We think the rule is, that the corroborative evidence must relate to some portion of the testimony which is material to the issue.” In that case the evidence, held to be competent as corroborative, confirmed the accomplice as to a fact which did not tend to connect the defendant with the crime. Since this decision it has been usual to instruct the jury in substantial compliance with the rule stated therein, though the practice of different judges in the exercise of their discretion has varied. Commonwealth v. Brooks, 9 Gray, 299. Commonwealth v. Price, 10 Gray, 472. Commonwealth v. O'Brien, 12 Allen, 183. Commonwealth v. Larrabee, 99 Mass. 413. Commonwealth v. Elliot, 110 Mass. 104. Commonwealth v. Snow, 111 Mass. 411. See also Regina v. Stubbs, Dearsly, 555; S. C. 7 Cox C. C. 48; State v. Wolcott, 21 Conn. 272.

In the case at bar, there being corroborative evidence, the presiding justice was not called upon to advise the jury to acquit, but was required to submit the case to them; and we are of opinion that the instruction given, which called the attention of the jury to the suspicious character of the testimony of the accomplice, and advised them, in substance, that it was not safe to convict unless his testimony was corroborated in some portion which was material to the issue, is not open to exception by the defendants. Exceptions overruled.