Rumrill v. Ash

169 Mass. 341 | Mass. | 1897

Knowlton, J.

1. No exception lies to the refusal of the presiding justice to instruct the jury that evidence of verbal admissions should be received with great caution, and to give the other instructions requested of similar import. The weight of such evidence is for the jury, and although it is not error for a judge to give general instructions in regard to the nature of a certain class of evidence, and the considerations which properly arise in dealing with it, he must be careful, if he does this, not to invade the province of the jury by intimating an opinion upon the facts of the particular case, nor to state propositions which are not true in their general application to evidence of that class. If he chooses to leave-the jury to deal with questions of fact in the light of their experience and judgment, without his aid, the parties have no legal ground of objection. Commonwealth v. Downing, 4 Gray, 29. Commonwealth v. Whitcomb, 12 Gray, 126. Commonwealth v. Wood, 11 Gray, 85. Commonwealth v. Brown, 121 Mass. 69. Commonwealth v. Bishop, 165 Mass. 148. In the present case the judge stated correctly the nature of evidence of admissions, and the elements which give such evidence weight. These instructions were sufficient for the assistance of the jury.

2. The witness Bumrill, the son of the plaintiff’s intestate, testified to an important admission made by the defendant on the morning after the death of the witness’s father. The fact brought out in his cross-examination, that he did not go to look for the note in the safe of Morton, after the defendant had told him that it was there the last he knew of it, could have been used by the defendant’s counsel in argument with considerable effect as tending to show that no such admission was made, if the testimony had been left unexplained. The defendant’s counsel, in reply to a question by the judge, stated that he should contend that it was significant. The explanation by the witness was therefore rightly received. The conversation was not competent to show the truth of the matters stated in it, but it gave an adequate explanation of the conduct of the witness.

3. The testimony of Sanders that was objected to was rightly admitted. It was a part of a conversation which was important, and which was admitted without objection. Moreover, it contained nothing more than the defendant himself had previously admitted in his testimony.

The exception to the testimony of West has not been argued, and we treat it as waived. The testimony was rendered immaterial by the subsequent admission of the defendant.

Exceptions overruled.