Commonwealth v. Brewer

Massachusetts Supreme Judicial Court

Commonwealth v. Brewer

42 N.E. 92, 164 Mass. 577, 1895 Mass. LEXIS 297

CourtMassachusetts Supreme Judicial Court

DecidedNovember 27, 1895

StatusPublished

Cited by25 cases

This text of 42 N.E. 92 (Commonwealth v. Brewer) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. Brewer, 42 N.E. 92, 164 Mass. 577, 1895 Mass. LEXIS 297 (Mass. 1895).

Pincite

Opinion

Holmes, J.

1. If the exclusion of the question to the defendant, “ In October did you have a miscarriage ? ” was wrong, which we do not intimate, in the absence of an offer to connect the fact with the defendant’s condition in the middle of Deceznber, it was cured by afterwards allowing her to testify that on the day of the shooting she was suffering from the effects of a miscarz’iage, and was weakened by reason of it.

2. The question whether - there was a change in Lattimer’s habits with reference to drinking between October 20 and December 13 was immaterial. The defendant was allowed to prove his condition on the day when she shot him.

3. The defendant was allowed to testify that she had been pregnant by Lattimer, and her testimony was not controverted by the government. Under these circumstances, the exclusion [582]*582of evidence that she had made a similar statement in pais did her no harm, even assuming that the facts were such as to take the evidence out of the general rule against hearsay. This exception was not argued.

4. The dying declarations of Lattimer were admissible. The evidence was clear that they' were made under a sense of impending death. Just before they were made, both the attending doctors had told Lattimer that there was no chance of his recovering. His exclamation in answer, “ Oh, my God, must I die! ” and his later request, “ Give me some water, if I have got to die,” imply an acceptance of the fact. The rebellion suggested by the words is not against the truth, but against the hardship of the fact. The judge by admitting the evidence impliedly found that Lattimer believed what the doctors told him. If it were true, as the defendant argues, that it was wrong to let the jury revise the judge’s preliminary finding, without which he could not have admitted the evidence, the. defendant did not suffer, but on the contrary was allowed a second chance of getting the evidence excluded,—a chance of which her counsel seems to have availed himself by arguing that Lattimer’s words expressed a hope of recovery. But the course adopted was right, and was in accordance with the settled practice. When the admissibility of evidence depends upon a collateral fact, the regular course is for the judge to pass upon the fact in the first instance, and then, if he admits the evidence, to instruct the jury to exclude it if they should be of a different opinion on the preliminary matter. Commonwealth v. Preece, 140 Mass. 276, 277. Commonwealth v. Robinson, 146 Mass. 571, 580 et seq.

Exceptions overruled.

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Holmes, J.

1. If the exclusion of the question to the defendant, “ In October did you have a miscarriage ? ” was wrong, which we do not intimate, in the absence of an offer to connect the fact with the defendant’s condition in the middle of Deceznber, it was cured by afterwards allowing her to testify that on the day of the shooting she was suffering from the effects of a miscarz’iage, and was weakened by reason of it.

2. The question whether - there was a change in Lattimer’s habits with reference to drinking between October 20 and December 13 was immaterial. The defendant was allowed to prove his condition on the day when she shot him.

3. The defendant was allowed to testify that she had been pregnant by Lattimer, and her testimony was not controverted by the government. Under these circumstances, the exclusion [582]*582of evidence that she had made a similar statement in pais did her no harm, even assuming that the facts were such as to take the evidence out of the general rule against hearsay. This exception was not argued.

4. The dying declarations of Lattimer were admissible. The evidence was clear that they' were made under a sense of impending death. Just before they were made, both the attending doctors had told Lattimer that there was no chance of his recovering. His exclamation in answer, “ Oh, my God, must I die! ” and his later request, “ Give me some water, if I have got to die,” imply an acceptance of the fact. The rebellion suggested by the words is not against the truth, but against the hardship of the fact. The judge by admitting the evidence impliedly found that Lattimer believed what the doctors told him. If it were true, as the defendant argues, that it was wrong to let the jury revise the judge’s preliminary finding, without which he could not have admitted the evidence, the. defendant did not suffer, but on the contrary was allowed a second chance of getting the evidence excluded,—a chance of which her counsel seems to have availed himself by arguing that Lattimer’s words expressed a hope of recovery. But the course adopted was right, and was in accordance with the settled practice. When the admissibility of evidence depends upon a collateral fact, the regular course is for the judge to pass upon the fact in the first instance, and then, if he admits the evidence, to instruct the jury to exclude it if they should be of a different opinion on the preliminary matter. Commonwealth v. Preece, 140 Mass. 276, 277. Commonwealth v. Robinson, 146 Mass. 571, 580 et seq.

Exceptions overruled.

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Bluebook (online)

42 N.E. 92, 164 Mass. 577, 1895 Mass. LEXIS 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-brewer-mass-1895.

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