Commonwealth v. Allen

| Mass. | Dec 3, 1879

Ames, J.

The motion to quash the indictment was properly overruled. The two counts do not appear to be for different offences, and, for that reason, the St. of 1861, c. 181, requiring an averment that the different counts are different descriptions of the same act, does not apply. That statute was not intended for the case of merely slight verbal changes in the description of property stolen or injured, provided the substantial identity is not affected; but to prevent the objection of misjoinder where the description might at common law be open to that objection. Commonwealth v. O’Connell, 12 Allen, 451.

The evidence as to the conversation between the defendant and the witness Knight was properly admitted. It was campe* tent for the purpose of showing that the defendant was present at the scene of the fire at a much earlier hour than he admitted in his defence. The particulars of the conversation, though unimportant in themselves, had a tendency to identify the occasion on which, and the person with whom, it occurred. Its general nature and duration, and its connection with the employment in which the witness was engaged, were calculated to make an impression on his mind, and to strengthen his recollection of the time and place.

Neither do we see that any wrong was done to the» defendant in the exclusion of the affidavits of the witnesses Morse and Sherburne. They had already admitted that before the fire they had had difficulties with him, and he was entitled, without using the affidavits, to whatever deduction should be made from their testimony on that account.

In the recent case of King v. Donahue, 110 Mass. 155" court="Mass." date_filed="1872-09-15" href="https://app.midpage.ai/document/king-v-donahue-6416934?utm_source=webapp" opinion_id="6416934">110 Mass. 155, it was decided in substance that a party to an action is not entitled to write his signature in the presence of the jury, or to use his signature written for the occasion and post litem motam, for the purpose of comparison with a signature, the genuineness of which as his own is in controversy. The defendant’s argument invites us to reconsider that decision, and he cites and relies upon the cases of Osbourne v. Hosier, 6 Mod. 167; Williams’ case, 1 Lewin, 137; and Regina v. Taylor, 6 Cox C. C. 58, which it is suggested were overlooked when King v. Donahue was decided. We find nothing, however, in those cases that requires us to overrule or reconsider that decision. The cases cited, and which are presented as inconsistent with King v. Donahue, go no farther, as we find, on full examination, than to show that under some circumstances presiding judges in their discretion have ordered or allowed signatures to be written in the presence of the jury, and considered by them; not that a judge may not refuse to permit such a signature to be written when the circumstances are such that it does not appear to him to furnish a fair standard of comparison. We see no reason to hold that the presiding judge was bound by law to admit the paper writings offered by the defendant for the purpose of comparison.

Upon the remaining exception taken by the defendant

Further argument is ordered.

The case was then submitted to all the judges, on additional briefs, by the same counsel.

Ames, J. Upon the reargument of the only exception not already disposed of, it is the opinion of the majority of the court that the bill of exceptions, upon a fair construction, shows it to have been admitted that the witness Blair had made a complaint in a criminal court against the defendant, for an alleged forgery; that the complaint had been dismissed for want of probable cause; and that the defendant had afterwards brought an action against him to recover damages for a malicious prosecution, which action is still pending. So far as the question as to the bias and prejudice of the witness was concerned, the defendant had the full benefit of these facts. They were quite enough to show that there had been hostile relations of a serious character between them. But it was a question, not as to the particulars and merits of any controversy between them, but as to the state of mind of the witness, and the credit to which he was entitled. It was entirely within the discretion of the presiding judge to decide to what extent the inquiry as to the particulars of the quarrel should be carried. Commonwealth, v. Jennings, 107 Mass. 488" court="Mass." date_filed="1871-09-15" href="https://app.midpage.ai/document/commonwealth-v-jennings-6416529?utm_source=webapp" opinion_id="6416529">107 Mass. 488. Morrissey v. Ingham, 111 Mass. 63" court="Mass." date_filed="1872-11-15" href="https://app.midpage.ai/document/morrissey-v-ingham-6417069?utm_source=webapp" opinion_id="6417069">111 Mass. 63.

Upon the question as to the meaning of the threat said to have been made “ to be even with ” the witness, and to “ make it hot for him,” it is true that it does not necessarily express an intent to injure his property by burning. The defendant was entitled to offer any explanatory evidence tending to show that such was not his meaning. The original writ and declaration in his suit for malicious prosecution with the docket entries in relation to it, and the record of the proceedings in the Municipal Court of Boston, upon the complaint against him for forgery, cannot be said to have been incompetent for that purpose. But the witness had already, on cross-examination, admitted that he had caused a complaint to be made against the defendant on a charge of forgery, and that the defendant had brought an action against him for malicious prosecution. The record of the Municipal Court could only show that the complaint had not been sustained, a fact which was fully admitted. The writ, declaration and docket record would only show that the defendant was seeking redress in a civil action for the wrong done him, which was also admitted. The particulars of what transpired at the hearing in the Municipal Court could have little if any bearing upon the trial of this indictment. The record in the civil action could only show that such an action, for such an alleged wrong, was pending in the proper tribunal. It is true that an admission extorted from a witness upon cross-examination does not preclude the party obtaining it from showing the same fact in more detail by other evidence. .But there was nothing in the evidence offered by the defendant that added anything to the proof of the bias and prejudice of the witness, or that threw, or could throw, any additional light upon the proper interpretation of the alleged threat made use of by the defendant. The majority of the court are of opinion that the presiding judge, in the exercise of his discretion, had a right to refuse to receive the details of what occurred at the trial upon the complaint, and also the details of the proceedings and pleadings in the action for damages. Exceptions overruled.