Commonwealth v. Morrell

| Mass. | Sep 15, 1868

Chapman, C. J.

The law generally requires the production of the highest evidence of which a thing is capable; and evidence is to be excluded which supposes still higher evidence behind in the possession or power of the party. But the rule is far from being universal. For example, it does not require that a supposed writer shall be called to prove his own handwriting, or that a person whose identity is to be proved shall be produced in court. The same is true in respect to an animal or any other object the identity of which is to be proved.

The general rule is most frequently applied to writings, where proof is offered of their contents. The writing itself must be produced. But there are many exceptions as to writings. An inscription on a banner or flag carried about by the leaders of a riot may be proved orally. The King v. Hunt, 3 B. & Ald. 566. Or a direction contained on a parcel. Burrell v. North, 2 Car. & Kirw. 679. Or a notice to an indorser of a promissory note. Eagle Bank v. Chapin, 3 Pick. 180.

In the present case, the tag referred to was not a document, but an object to be identified. The words written upon it served to identify it; and the court are of opinion that oral evidence was admissible for this purpose, and that it was not necessary to produce the tag. An inspection of the tag with the written direction upon it might have been more satisfactory to the jury than an oral description of it, and therefore might be regarded as the stronger evidence; but the strength of evidence and the admissibility of evidence are different matters.

But even if it ought to have been produced in the absence of evidence of its loss, the proof of loss was adduced to the judge, and bis decision as to the credibility of the evidence of loss was conclusive, and not subject to exception. Foster v. Mackay, 7 Met. 531.

The other exception relates to the confessions of the defendants. Their counsel requested that a preliminary examination be instituted by the court as to the circumstances under which the confessions were obtained. The purpose of such an exam ination is to satisfy the judge whether the evidence is admi» Bible. Upon the request being made, it was for him to direct the course of the examination; and he might, if he thought-proper, direct the prosecuting officer to conduct it. The defendants’ counsel had no legal right to conduct it contrary to the direction of the judge; and the extent to which it should be carried, and its effect upon the admissibility of the confessions, were to be decided by the judge. It is not alleged that the right of cross-examination was abridged when the evidence was offered to the jury. The court can see nothing in the proceedings that is subject to exception. Exceptions overruled.