312 Mass. 438 | Mass. | 1942
The defendant was convicted on the first indictment of falsely assuming and pretending that he was a police officer and of acting as such, and on the second indictment, which contained two counts, of maliciously threatening to accuse one Sanders of a crime with intent thereby to extort money from him on two occasions. He was sentenced on the second indictment.
Sanders, who was the “ chief government witness,” testified to a relationship between the defendant and him which began on the evening of August 29, 1941, and ended October 7, 1941, when the defendant was arrested. The jury could have found from this testimony that the defendant, a total stranger, approached Sanders on August 29, engaged bim in conversation and made indecent proposals to him, which were rejected; that the defendant said that he was a Boston police officer and was going to arrest him, but offered to let him go if he would “post a $50 bond”; that he gave the defendant $15 and was released, paying
In cross-examination, Sanders was asked if he did not say to the defendant on October 7: “I’m sorry I have to do this to you Bill, but it’s either me or you; I got a 9-month suspended sentence once before for picking up a fellow in the subway.” Upon objection, counsel stated that the defendant would testify that there was this conversation at that time and that he was offering it “to establish a prior inconsistent statement by . . . Sanders so as to impeach his credibility.” The district attorney stated that this was an indirect way of getting in a criminal record that was otherwise inadmissible, and the question was excluded subject to the defendant’s exception. On direct examination of the defendant, the trial judge instructed him that he was not to testify to the alleged conversation “in respect to the portion that related to the alleged suspended sentence of nine months of the complaining witness Sanders.” But the judge, “however, did not deny the
It is well settled that the conviction of a witness of a crime can be shown to affect his credibility only by the record of his conviction. Commonwealth v. Danton, 243 Mass. 552, 554. G. L. (Ter. Ed.) c. 233, § 21. But it is also well settled as a rule of evidence that if a witness, upon either direct or cross-examination, testifies to a fact that is relevant to the issue on trial, -the adverse party, for the purpose of impeaching his testimony, may show that the witness has made previous inconsistent or conflicting statements either by eliciting such statements upon cross-examination of the witness himself, or by proving them by other witnesses. Commonwealth v. Hunt, 4 Gray, 421. Commonwealth v. Early, 161 Mass. 186. Commonwealth v. Smith, 163 Mass. 411, 431-432. Robinson v. Old Colony Street Railway, 189 Mass. 594, 596. Commonwealth v. Homer, 235 Mass. 526, 532, 533. And it is not necessary that there should be a contradiction in plain terms. It is enough if the proffered testimony, taken as a whole, either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict. Commonwealth v. Lee, 143 Mass. 100. Foster v. Worthing, 146 Mass. 607. Liddle v. Old Lowell National Bank, 158 Mass. 15. Langan v. Pianowski, 307 Mass. 149, 151-152. The rule that the extent of cross-examination on collateral issues to test the honesty or credibility of a witness must be left largely to the discretion of the trial judge has no application where alleged contradictory statements of a witness relate to the main issue that is being tried. Commonwealth v. Hunt, 4 Gray, 421. Robinson v. Old Colony Street Railway, 189 Mass. 594.
The purpose of such evidence, when properly admitted, and its force and effect are usually explained to the jury in the charge of the trial judge.
Exceptions sustained.