162 Mass. 242 | Mass. | 1894
The defendants contend that the provisions of the Pub. Sts. c. 153, § 5, were violated by the justice who presided at the trial in the Superior Court, and that they are therefore entitled to a new trial. This section is as follows: “ The courts shall not charge juries with respect to matters of fact, but may state the testimony and the law.” It was undoubtedly within the province of the presiding justice, if the defendants’ counsel in his argument stated the evidence differently from what the justice supposed it to be, to call his attention to the fact, and to state what his recollection of it was. He could also in the charge to the jury call their attention to the question of what the evidence was, leaving the question to their determination. This is what was done in this case, and the defendants have no ground of exception. It was not a charge upon a matter of fact, but merely a reference to the testimony which the justice had a right to make. Eddy v. Gray, 4 Allen, 435, 438. Durant v. Burt, 98 Mass. 161, 168.
It is further contended that there is nothing in the bill of exceptions to show that there was any foundation for the statement of the justice that there was a dispute between the counsel for the defendants and the prosecuting attorney as to what the defendant Walsh testified. The bill of exceptions, however,
The further contention is twofold in its character. It is said that the justice, had no right to instruct the jury what inference was to be drawn from the testimony, assuming it to be as the government contended, and that in any event the testimony of Walsh as to his intention could not bind the other defendant. The language of the court is not, however, open to the objection that the jury w.ere instructed what inference to draw. They were merely told, in effect, that it was for them to say whether they would draw a certain inference, if it seemed a proper one for them to draw. See Commonwealth v. Clifford, 145 Mass. 97; McKean v. Salem, 148 Mass, 109; Commonwealth v. Keenan, 148 Mass. 470. No doubt, as the defendants contend, if Walsh changed his intention, this would not tend to show that the other defendant changed his intention; but the objection was a general one, and the attention of the judge should have been called to the point' that the language used by him was not properly applicable to both defendants. New Hampshire Ins. Co. v. Healey, 151 Mass. 537, Dolan v. Alley, 153 Mass. 380.
Exceptions overruled.