Commonwealth v. Flynn, 165 Mass. 153

Commonwealth v. Flynn

165 Mass. 153 | Mass. | 1896

Knowlton, J.

The evidence objected to was rightly admitted. Upon an indictment for a robbery it is always competent to show the effect of the assault upon the person assaulted. The physician who attended Florence Meakin for two days after the robbery might well testify that she was hysterical when he saw her. The testimony of the witness Schneider was not admitted as the opinion of an expert, but as a description of the appearance of the person robbed, and of her apparent physical condition before the robbery and after it. Commonwealth v. Sturtivant, 117 Mass. 122, and cases cited. The witness Kelley, having testified to facts which tended to prove an alibi for the defendant Flynn, and having said that his attention was called to the robbery on the next day after it occurred, and that he then thought of Flynn, the government, in cross-examination, for the purpose of fixing the time and testing Ins accuracy, was rightly permitted to ask him the question, “ Did you associate Flynn with the robbery ? ”

The witness Brown had testified that he was in Worcester with the defendant Droney at the time of the robbery, and the defendants were not injured by the question put to him in cross-examination, “ Miss Meakin did not identify you as the man who assaulted her?” and by his answer, “No. I don’t know as she saw me. I saw her. She could have seen me if she looked.”

No error appears in permitting the witness Connor to refresh his recollection by looking at the book in which his report was entered.

The only other exception is' to a remark of the judge in the course of his charge referring to the testimony of Miss Meakin : “ She identifies them here at the trial without hesitation.” It is contended that the meaning of the word “ identify ” is to prove identical, or to prove to be the same, and that therefore *157the remark was an expression of opinion in regard to the credibility of the witness, and not a mere statement of a part of the evidence. Pub. Sts. c. 153, § 5. Commonwealth v. Foran, 110 Mass. 179, 180. It is not disputed that she testified without hesitation to her identification of the defendants as her assailants, and we think it clear that the judge used the word “ identifies ” in reference to her testimony in a colloquial sense as meaning “ asserts their identity. ” We do not think the jury could have been misled by the remark. Moreover, when his attention was directed to it, he said to the jury, “ I was then depending upon my recollection. It is for you to say what the evidence is.” It was plainly his purpose to have the jury understand that they were not to consider his opinion of the credibility of the witness, if he had seemed to express it.

Exceptions overruled.