111 Mass. 411 | Mass. | 1873
Three questions only are presented upar this report
The fact that the defendant attempted to commit, with Emerson, a like offence to that charged in the indictment, was not competent, by itself. It was necessary to be shown, in order to give character and significance to the accompanying declaration, and appears to have been admitted for that purpose only. It was competent for that purpose, if the declaration itself was admissible.
It is true, as the defendant contends, that other instances of a like offence committed by the defendant are not admissible to establish his guilt in the particular instance charged. For the same reason, his confession of such other offences would not be competent. But any confession or conduct of his which has any tendency to show that he is guilty of this particular charge is admissible. The court must see that it may thus affect the defendant ; it is then for the jury to determine whether it does so affect him in fact, and to what extent. To render a confession or declaration admissible for the consideration of the jury, it is not necessary that it should be minute or explicit in its reference to the subject matter. It cannot be excluded because it does not, in express terms, define the time and place, or the person with whom the transaction spoken of occurred; nor because it is so general or indefinite as to be applicable to other occurrences than the one under investigation, as well as to that. If it refers to other like occurrences exclusively, it must be rejected as incompetent. But if it may refer to that which is on trial, its indefiniteness or remoteness affects its weight only, and not its admissibility. It is so with the whole class of circumstantial evidence.
The declaration in this case is that he “ had done it with other boys.” It was made one week only after the alleged offence for which he was on trial. As it was of such a character as to be applicable to that supposed occurrence, it was an inference of fact, to be drawn only by the jury from the declaration itself, from its relation in point of time, and all the circumstances of the case, whether it did so apply or not. The difficulty of making it certain, in point of fact, does not make it incompetent in point of
2. The testimony of Bean, Holt and Morse, in regard to the conduct of the defendant and the condition of the outer door, as well as that of Emerson, furnished some corroboration to that of Smith; sufficient to warrant the jury in returning a verdict against the defendant, even if Smith was to be regarded in all respects as partioeps criminis.
3. The defendant contends that, as Smith denied his voluntary participation in the crime, and as the district attorney, in his argument, admitted that he was in fact in the situation of an accomplice, so as to require corroboration, it must follow that Smith knowingly and wilfully testified falsely; and therefore that the defendant could not properly be convicted upon his testimony. He asked the court below so to instruct the jury. We think the court rightly refused to draw the inference that the witness had wilfully and corruptly testified to what was false, or to give the instruction asked for as to the effect to be given to his denial of voluntary participation, if untrue. The whole matter of the credit to be given to the witness was for the jury; and it was submitted to them with instructions which appear to us to be unexceptionable. Judgment on the verdict*
