Commonwealth v. McIntosh
156 N.E. 712
Mass.
1927
Check Treatment
Rugg, C.J.

The defendant was convicted upon three indictments tried together, one charging breaking and entering a building in the daytime and larceny therein, the second charging assault with a dangerous weapon with intent to rob and robbery from the person, and the third charging assault with a dangerous weapon with intent to murder. There was evidence to support the charges. Testimony was *390introduced tending to show a confession made by the defendant covering the three crimes.

One Grasso, the person upon whom it was charged that the assault with intent to murder was committed, was called as a witness by the Commonwealth. His entire testimony, as shown by the record, is in these words: “He testified that on the morning of November 13, 1924, several men came to the house of Ciarvalo, with whom he was at the time living; that he was called into the cellar by these men, who forced him to hold up his hands by pointing revolvers at him and removed a quantity of liquor from the cellar. He was asked whether the defendant was one of these men, and replied that he was not sure that the defendant was one of them, but that he looked like the man.” A witness was then called and permitted to testify, subject to the exception of the defendant, that Grasso, in the presence of the defendant, then under arrest, and several others shortly after the offences were alleged to have been committed, had made the statement in substance that the defendant was one of the men who, being armed, had thus assaulted him, and that the defendant made no reply. At the time of the admission of this testimony, the judge instructed the jury that the evidence was admissible only to contradict Grasso, did not have the effect of independent evidence, was of no probative value as to the truth or falsity of statements made by Grasso out of court, that the defendant was not called upon to say anything under the circumstances, and that no inference was to be drawn against the defendant because of his silence.

These instructions fully protected the rights of the defendant. Commonwealth v. Festo, 251 Mass. 275, at page 279.

The Commonwealth may introduce evidence of statements, made at other times by a witness called by it, inconsistent with his testimony given on the witness stand, “but before proof of such inconsistent statements is given, the circumstances thereof sufficient to designate the particular occasion shall be mentioned to the witness, and he shall be asked if he made such statements, and, if so, shall be allowed to explain them.” G. L. c. 233, § 23. Commonwealth v. Festo, supra, pages 278, 279.

*391It is argued that the impeaching testimony was not competent because the attention of Grasso was not first called to his inconsistent statements. It is manifest that the record does not contain the entire testimony of Grasso. All that the record says about his testimony has been quoted in full.

There is nothing to show that there was not compliance with all the requirements of the statute. It has been held in somewhat analogous cases that unless the bill of exceptions shows that preliminary steps to make evidence admissible have not been taken, it will be assumed that they were taken. Heathcote v. Eldridge, 226 Mass. 168, 170. Horan v. Boston Elevated Railway, 237 Mass. 245, 247. G. L. c. 233, § 65. Commonwealth v. Glassman, 253 Mass. 65, 74. For aught that appears, the statutory preliminaries may have been observed.

The record nowhere states that it contains all the evidence material to the exceptions alleged. It has been decided many times that it is the duty of the excepting party to set out all the evidence touching the questions of law raised. As was said by Morton, J., in Barnes v. Loomis, 199 Mass. 578, 581, “From the bill of exceptions we have no means of knowing whether the various excerpts of evidence which it contains do or do not set out all of the evidence bearing upon the matters to which they respectively relate. The plaintiff is the excepting party, and as such is bound to see that the bill of exceptions includes all that is necessary to enable us to decide whether the rulings, of which he complains, were or were not erroneous.” This was somewhat amplified and followed in Posell v. Herscovitz, 237 Mass. 513, 516, 517, where cases are collected. To the same effect are Monaghan v. Goddard, 173 Mass. 468; York v. Barstow, 175 Mass. 167, 169; Todd v. MacLeod, 188 Mass. 144, 146; Savage v. Collins, 211 Mass. 472; Sexton v. Boston Elevated Railway, 214 Mass. 432, 435; New York Central Railroad v. Freedman, 240 Mass. 200, 208. This principle applies in criminal cases as well as in civil. The burden is upon the excepting party to show error. Commonwealth v. Moinehan, 140 Mass. 463, 465. Commonwealth v. Rivet, 205 Mass. 464, 466. Commonwealth v. Barry, 115 Mass. 146, 148.

*392The testimony admitted had a tendency to show statements made by Grasso out of court inconsistent with his evidence as a witness.

The confession of the defendant was submitted to the jury under correct instructions. Commonwealth v. Russ, 232 Mass. 58, 70, 71.

Exceptions overruled.