Commonwealth v. Sherman , 1919 Mass. LEXIS 970 ( 1919 )

De Courcy, J.

The indictment on which the defendant was tried contained two counts, the first count alleging a burning in the night time of February 21,1918, of the office and lumber sheds of the W. H. Sawyer Lumber Company, in Worcester, and the second alleging a burning in the night time of July 20, 1918, of a pile of lumber of the same company. At the close of the Commonwealth’s case the judge directed a verdict of Hot guilty on the first count. The jury found the defendant guilty on the second count. There were numerous exceptions to the admission of evidence, and to the refusal of the judge to charge the jury as requested.

1. The defendant was arrested by Sergeant of Police Kelleher. On the morning of his arrest, there was a conversation between them, culminating in the defendant’s confession. Kelleher testified that the defendant told him about seeing and firing at a man on the railroad track adjoining the lumber yard three nights after the fire, and finding a “bomb” on his return from a pursuit of this man; and that the defendant admitted, after they had interviewed certain women who the defendant had said were with him at the time of this incident, that there was no bomb, no man, “just a joke on the women.” This was admissible as part of the same conversation in which the defendant finally admitted setting the fire. In itself it tended to show that the defendant invented this story in order to direct suspicion from himself to this imaginary person.

2. The defendant’s confession, that he “got some waste from a freight car and placed it on a pile of boards and started the fire” was properly admitted. In accordance with the settled practice in this Commonwealth, the judge in the absence of the jury held a preliminary hearing to determine whether the confession was voluntary; and, having admitted it in evidence, he adequately instructed the jury in his charge to reject the alleged confession if they were satisfied that it was made under the influence of some threat or promise, and so was not voluntary. Commonwealth v. Hudson, 185 Mass. 402. Commonwealth v. Russ, 232 Mass. 58, 69. The defendant himself testified, upon cross-examination, that his statement was voluntary; and to the question (properly asked) “Did anything that the sergeant said to you have any effect whatever on you?” answered, “Not a bit.” There was independent evidence that oil-soaked waste was found near the burned lumber, and black oil or grease spots on some of the boards, which might have been caused by the oil or grease from the axle box of a car. As was said by Shaw, C. J., in Commonwealth v. Morey, 1 Gray, 461: “The ground on which confessions made by a party accused, "under promises of favor, or threats of injury, are excluded as incompetent, is, not because any wrong is done to the accused, in using them, but because he may be induced, by the pressure of hope or fear, to admit facts unfavorable to him, without regard to their truth, in order to obtain the promised relief, or avoid the threatened danger, and therefore admissions so obtained have no just and legitimate tendency to prove the facts admitted.”

3. There was no error in asking Sergeant ICelleher “whether [he] . . . had any conversations with the defendant with reference to the big fire,” meaning the fire of February 21. It appearing that the sergeant then said to the defendant “Tell the truth; it is better for you,” the judge excluded the conversation. Later, the judge directed a verdict of “Not Guilty” on the first count, relating to the fire of February 21; and fully instructed the jury not to consider any evidence relating to it.

4. The judge rightly admitted the testimony of Captain Dillon, that, after Sergeant Kelleher stated what the defendant had said to him about the July fire, Sherman replied to it: “I am not going to talk before a crowd; I am not going to say anything that can be used against me; this means twenty years to me.” Also the testimony of Dr. Peterson, that Sherman said to him: “Supposing I told you I took some waste and threw it under a pile of lumber in the Sawyer yard and then went home, and fifteen or twenty minutes later an alarm was turned in that there was a fire in the yard, could you prove that I had set the fire?” The jury well might find that these statements tended to show consciousness of guilt; and no valid ground for their exclusion has been shown. Commonwealth v. Piper, 120 Mass. 185, 189. Commonwealth v. Trefethen, 157 Mass. 180, 197,198. Commonwealth v. Spiropoulos, 208 Mass. 71. Commonwealth v. Myers, 160 Mass. 530.

5. Many exceptions were taken to questions which the district attorney was allowed to ask the defendant on cross-examination, most of them relating to matters inquired of in direct examination. We have examined all of them, and deem it sufficient to say that the judge rightly allowed them in his discretion as bearing on the defendant’s credibility.

6. The testimony of Captain Dillon in rebuttal was rightly admitted to contradict the testimony of the defendant. The testimony of officer Healy and that of officer Finneran, assuming it all to be material, apparently should have been offered as part of the Commonwealth’s case in chief rather than in rebuttal. We are not satisfied, however, that any harmful error has been shown.

7. There was no error in failing to give the instructions requested. With one exception they emphasized selected facts for comment by the judge. Altavilla v. Old Colony Street Railway, 222 Mass. 322. The judge aptly and accurately defined the law with reference to confessions, and explained the probative force of the collateral evidence, offered to show consciousness of guilt. The legal rights of the defendant were fully and fairly safeguarded in a charge to which no exception, was taken.

Exceptions overruled.