Evidence, Admissions and Confessions, Remoteness. Arson. At a trial for wilfully and maliciously setting fire to a barn by the burning whereof a dwelling house also was burned, the defendant contended that the presiding judge was not warranted by the evidence on the voir dire in admitting a certain confession as voluntary. It appeared, that before the confession a deputy sheriff said to the defendant when four other officers were present "If you are not guilty, don't you think you had better tell the truth?" Whereupon an assistant fire marshal, who had been questioning the defendant, told him that he offered him no inducement for anything he had a mind to say about the matter, that whatever he said must be of his own free will, and that he offered him "no hope or favor whatever." Held, that the judge was warranted in admitting the confession as voluntary.
At a trial for wilfully and maliciously setting fire to a barn, the owner of the building, called as a witness by the Commonwealth, was asked by the defendant on cross-examination, whether tramps were in the habit of going into the loft of the barn. The presiding judge excluded the question. Held, that the exclusion of the question as calling for matters too remote was a proper exercise of the discretion of the presiding judge.
At a trial for wilfully and maliciously setting fire to a barn, by the burning of which a dwelling house also was burned, the owner of the building, called as a witness by the Commonwealth, testified in his direct examination that the buildings destroyed by fire were insured for $3,500, and that they had cost $8,850. The defendant offered evidence tending to show that the buildings cost much less than the sum named, for the purpose of showing that a person other than the defendant had a strong motive for setting fire to the buildings, and also for the purpose of impeaching the witness. The presiding judge excluded the evidence. Held, that the exclusion of the evidence, as too remote in its bearing either upon the guilt of the defendant or the credibility of the witness, was a proper exercise of the discretion of the presiding judge.
HAMMOND, J.
1. "When a confession is offered in evidence, the question whether it is voluntary is to be decided primarily by the presiding justice. If he is satisfied that it is voluntary, it is admissible; otherwise, it should be excluded. When there is conflicting testimony, the humane practice in this Commonwealth is for the judge, if he decides that it is admissible, to instruct the jury that they may consider all the evidence, and that they should exclude the confession, if, upon the whole evidence in the case, they are satisfied that it was not the voluntary act of the defendant." Morton, J. in Commonwealth v. Preece, 140 Mass. 276, 277, citing cases. That practice was followed in the present case; and the question is whether the evidence on the voir dire warranted the judge in coming to the conclusion that the confession was voluntary. While it may be true that when an arresting officer tells his prisoner that he "had better tell the truth," the general rule is that the confession is inadmissible, still, after all, the real question in any case is whether such or similar language, when taken in connection with the attending circumstances and with other language spoken in the same or some prior interview, shows that the confession was made under the influence of some threat or promise so that it was not voluntary. Commonwealth v. Nott, 135 Mass. 269, and cases cited. Commonwealth v. Kennedy, 135 Mass. 543. Even if it be assumed that the question "Don't you think you had better tell the truth?" is in substance equivalent to saying in a direct form that "it is better to tell the truth," still the subsequent statement by the officer that he offered the prisoner "no hope or favor whatever" must be considered in connection with it. After a careful perusal of the whole evidence, we think that the presiding judge was warranted in coming to the conclusion that the confession was not procured by threat or promise, but was the free and voluntary act of the defendant.
2. The question whether tramps were in the habit of going into the barn was properly excluded, as also was the evidence as to the cost of the building. Under the circumstances of this case the presiding judge may well have thought that those matters were too remote to be of any practical use to the jury in deciding upon the guilt of the defendant or the credibility of the witness Smith, who was the owner of the building.
Exceptions overruled.