COMMONWEALTH vs. ARTHUR PINA.

SPIEGEL, J. This is an appeal from a conviction of murder in the second degree. The indictment charged that on August 25, 1959, the defendant "did assault and beat Josephine Gomes, with intent to murder her, and by such assault and beating did kill and murder Josephine Gomes."

The assignment of errors relates solely to the admission in evidence of an alleged confession.

The defendant concedes that the alleged confession was made voluntarily and that the statements therein contained would be admissible in evidence as admissions. He argues,

Page 473

however, that it was error for the judge to allow the written instrument to be admitted in evidence as an exhibit because it was not a confession of the crime of murder.

The transcript of the evidence discloses that there was testimony by a sergeant of the New Bedford Police Department who took the stenographic notes of the "confession" that the statements were made by the defendant voluntarily; and that the sergeant made a written transcript from her own notes, which the defendant signed. The sergeant then read the statement which is identical with the alleged confession. The defendant did not object to the introduction of any of this testimony. Indeed, there can be no question that this was admissible evidence. Commonwealth v. Reibstein, 257 Mass. 436, 439. Commonwealth v. Grieco, 323 Mass. 639, 641.

The trial judge in his charge to the jury correctly stated among other matters the distinction between a confession and an admission. No objection was made to the judge's charge.

Subsequently, the jury returned to court with the following request: ". . . please define manslaughter." Whereupon the judge correctly stated the law of manslaughter. In addition the judge directed the jury's attention to the testimony of the defendant wherein he stated that his "passions were aroused; and, again, that he said that he shot, intending to shoot into the floor to scare the deceased, Josephine Gomes . . .."

Whether an admission or a confession, the written statement of the defendant was admissible in evidence and could be introduced as an exhibit. See Commonwealth v. Belenski, 276 Mass. 35, 42; Commonwealth v. Galvin, 323 Mass. 205, 216; Wharton's Criminal Evidence (12th ed. 1955) Section 397, at p. 145. The only prejudicial element argued by the defendant is that the statement was admitted as a confession of the defendant and that the jury were influenced by this fact. The only occasion on which the trial judge referred to the statement as a confession was out of the hearing of the jury. When in the hearing of the jury the

Page 474

Commonwealth offered in evidence " . . . the signed copy of the confession of Arthur Pina made August 25, 1959, at the New Bedford Police Station, marked as Exhibit 7," the judge replied, "The signed copy of an alleged confession. It is for the jury to say whether it is a confession." See Commonwealth v. Reibstein, 257 Mass. 436, 439. These remarks of the trial judge coupled with his explicit charge to the jury as to the distinction between a confession and an admission clearly demonstrate that the defendant's argument of prejudice is without merit.

In view of what was said above we think it is unnecessary to discuss the question of whether the statement of the defendant was a confession of the crime of murder or an admission which was evidence on the issue since in any event the defendant was in no way prejudiced by what took place at his trial.

Judgment affirmed.