Commonwealth v. Matthews

129 Mass. 485 | Mass. | 1880

Ames, J.

It was entirely within the ordinary rules .of evidence to allow the witness Elwell to testify as to what he found at the defendant’s place of business, and to give a general description of the place and of the mode in which it was furnished. He had a right also to testify that the beer which he found there was a species of lager, which was merely another mode of saying that it resembled, or appeared to him to be, lager beer. In saying, however, that it contained three and a half per cent of alcohol, the cross-examination showed that he spoke without actual knowledge, and relied upon information conveyed to him by a telegram from another person. That is to say, bis testimony upon that particular point was mere hearsay, and was therefore incompetent and irrelevant. The fact that the defendant did not object to it does not render the telegram admissible in his favor, or give him the right to contradict hearsay evidence by other evidence of the same character. The presiding judge, in the exercise of his discretion, might rightfully exclude the telegram. Mowry v. Smith, 9 Allen, 67. Commonwealth v. Fitzgerald, 2 Allen, 297. Parker v. Dudley, 118 Mass., 602. It does not contradict the witness’s testimony that the beer appeared to him to be lager, as it did not appear that his opinion on that point was based upon or derived from the telegram.

The order of the selectmen to the deputy sheriff, although it was an intimation of an intent to prosecute offenders against the license law, in certain contingencies, had no effect as a license. Exceptions overruled.