Commonwealth v. Lannan , 95 Mass. 563 ( 1866 )

Hoar, J.

These cases have been argued together, and most of the exceptions taken in them are without foundation. The case of Lannan presents the largest number of questions; and the decision in that will dispose of nearly all the other cases.

Each of the defendants filed or offered to file a special plea in bar, which was rejected by the presiding judge, who ruled that the attorney for the Commonwealth was not required to reply or demur to it, and directed the trial to proceed upon a plea of not guilty. In the cases of Shute, Morris, Miller, and the second of Hamblett’s, this plea was tendered after a plea of not guilty, and of course could not be filed without leave of the court. 1 Chit. Crim. L. 436. In the case of Hamer, who refused to make any further plea than the special plea in bar, the court ordered a plea of not guilty to be entered. In the other cases the defendants pleaded not guilty.

1. The first point in Lannan’s case is, that the defendant should not have been required to go to trial on the plea of not guilty until his plea in bar had been disposed of upon demurrer or issue. On examining it, we find that it was wholly insufficient as an answer to the charge in the indictment, and that an issue framed upon it would have been immaterial. The court so regarded and disposed of it. The attorney for the Commonwealth objected that he was not bound to answer it, and the objection was sustained. This amounted to a demurrer ore terms, and the defendant has had all the advantage that he would have had on a demurrer in writing. He has therefore had no prejudice, and has no ground of exception. There was nothing in the plea in bar which, if of any validity, would not have been available to him under the plea of not guilty. It was not a plea which he was entitled to make, and upon his answering over, in compliance with the order of the court, the trial proceeded regularly, and in a legal and proper manner. It is not every paper which a party may choose to tender that will be accepted as a plea to an indictment. It should at least purport to contain a full answer to the charge. “ A prisoner is said to stand mute,” says Black stone, “ when, being arraigned for treason or felony, he either, 1, makes no answer at all; .or, 2, answers foreign to the purpose, or with such matter as is not allowable; and will not answer otherwise.” 4 Bl. Com. 324. The distinction between the case at bar and Commonwealth v. Merrill, 8 Allen, 545, is, that in that case there was a plea in bar, sufficient in form, of a former conviction; and that there was no issue taken upon that plea by which it could be disposed of. It was held that to be required to give his evidence of a former conviction at the same time that he was tried on a plea of not guilty might prejudice his defence.

The order of the court to enter the plea of not guilty for Hamer, who refused to plead further, was authorized by Gen. Sts. c. 171, § 29. His first plea having been overruled and rejected, there was no plea made by him on which he could be tried

2. It obviously follows from the decision that the plea in bar was rightly overruled and rejected, that its statements could not be considered as admitted by the district attorney who refused to answer it.

3. Requiring a witness to produce a memorandum which is not in court, and which he has not been summoned to produce, is a matter within the discretion of the court; and the refusal to require it is no cause of exception.

4. The defendant by offering himself as a witness waives his right to object to any question pertinent to the issue, on the ground that the answer may tend to criminate him. He is not required to testify, and may protect himself by omitting to dc so. Commonwealth v. Price, 10 Gray, 472.

5. It does not appear by the bill of exceptions what answer the witness Dougherty made to the question asked him, which he objected to answering because it might tend to criminate him; and it does not therefore appear that the defendant was prejudiced by the order requiring him to answer.

6. The remaining exception is to the ruling of the court, permitting the district attorney to read to the jury the special plea in bar, and instructing them that they might consider the statements contained in it as evidence against the defendant. This we think was erroneous. The plea was drawn by the defendant’s attorneys, and signed by them on his behalf; and was rejected by the court. Under these circumstances it is not to be regarded as a confession or admission which can be used against him. In civil cases, it is expressly provided by statute that the pleadings shall not be used as evidence. Gen. Sts. c. 129, § 72. So on a demurrer by the defendant in a case of felony, though the demurrer admits the truth of the facts charged in the indictment, yet he may plead not guilty after the demurrer is adjudged against him, for it is said “ that where he unwarily discloses to the court the facts of his case, and demands their advice whether they amount to felony, they will not record or notice the confession; ” and that a demurrer stands upon the same analogy. 1 Chit. Crim. L. 429, 442. And if, on. arraignment for a misdemeanor, judgment of respondeas ouster is given upon demurrer, it would avail him little to plead not guilty, if his former plea were to be used in evidence as his confession. Another analogy, which leads to the same conclusion, is to be found in the rule which excludes a prisoner’s confession when it has been made under any inducement or hope of advantage. These considerations, which apply to a plea made by the defendant himself, have still more force when applied to pleadings drawn by counsel for a specific purpose which they are not found to answer. They can in .no just sense be regarded as confessions by which his rights should be affected.

The verdict in Lannan’s case, therefore, and in the case "of Morris, in which the same exception was taken, must be set aside and a new trial granted.

The other exceptions taken have not been argued or relied on by counsel, and are overruled.

Against all the defendants except Lannan and Morris,

Exceptions overruled.