Commonwealth v. Dale ( 1928 )

Sanderson, J.

The defendants on separate complaints were convicted of being drunk by the voluntary use of intoxicating liquor, and the defendant Dale was also convicted of operating a motor vehicle while under the influence of intoxicating liquor.

The mother of the defendant Dale testified without objection, in reply to a question by the district attorney, that her daughter had never taken a drop of liquor in her life. ■ The defendant Dale thereafter took the stand and testified in cross-examination that she was not a drinking woman, and then, subject to the defendant’s exception, in answer to a question by the district attorney, stated that she had taken a drink now and then. The inquiry was competent to test the accuracy and meaning of the defendant’s testimony that she was not a drinking woman. The extent to which the defendant, who had testified that she was not under the influence of liquor, might be cross-examined as to her drinking habits rested largely in the discretion of the court. Commonwealth v. Corcoran, 252 Mass. 465, 486. Commonwealth v. Sacco, 255 Mass. 369, 441. Commonwealth v. Knight, 257 Mass. 421, 425.

The evidence was also admissible in the discretion of the judge to contradict the testimony of the defendant’s mother, brought out in cross-examination, even if that testimony were immaterial. Commonwealth v. Russ, 232 Mass. 58, 81. Commonwealth v. Mercier, 257 Mass. 353, 374. See also Commonwealth v. Wakelin, 230 Mass. 567, 576. But the testimony of the defendant’s mother was not immaterial. It tended to support the defendant’s denial that she was guilty of the offence charged. Commonwealth v. Goodnow, 154 Mass. 487, 488. Riddell v. Thayer, 127 Mass. 487, 489. The Commonwealth had the burden of proving not only that the defendant was drunk, but also that this condition was caused by the voluntary use of intoxicating liquor. Commonwealth v. Coughlin, 123 Mass. 436, Commonwealth v. Hughes, 133 Mass. 496, 498. The fact that the defendant sometimes drank liquor was a competent circumstance for the jury to consider on the question whether her drunkenness, if proved, was caused by intoxicating liquor voluntarily taken. The testimony of Mrs. Dale, if believed, was a complete defence to the crime charged. The ruling admitting the testimony of the defendant was right. No request was made to limit the effect of the testimony to the purposes for which it was competent, and the defendant cannot now complain because of the failure of the judge to instruct the jury concerning it. Commonwealth v. Feci, 235 Mass. 562, 568. The case of Hamsy v. Mudarri, 195 Mass. 418, is distinguishable in its facts from the case at bar.

The testimony offered by the witnesses called by the Commonwealth tended to prove the intoxicated condition of the defendants for about two hours before 11:40 p.m. on the day in question. The witnesses called in defence testified that the defendants were not under the influence of liquor during that time and also were not under the influence of liquor when seen at the police station at a period shortly after the time covered by the testimony of witnesses previously called by the Commonwealth. The district attorney was properly allowed in the discretion of the judge to introduce evidence in rebuttal to meet the testimony of the defendants covering this later period. Cushing v. Billings, 2 Cush. 158, 160.

Exceptions overruled.