Commonwealth v. Cosseboom

29 N.E. 463, 155 Mass. 298, 1892 Mass. LEXIS 302

Opinion

Lathrop, J.

1. The statements of Mrs. Roughsedge were properly excluded. She was not a party to the cause, nor was she a witness. The evidence does not even disclose that she instigated the charge, and, even if it did, this would not render her statements admissible. In Commonwealth v. Brownell, 145 Mass. 319, a witness for the government, who had testified that he was active in the prosecution, and that he had had a conversation with the complainant, was not allowed to be asked by the defendant what the conversation was. See also State v. Maitremme, 14 La. An. 830; Williams v. State, 52 Ala. 411; 1 Bish. Cr. Proc. (3d ed.) § 1082.

2. Two police officer's testified to a conversation had by them with the defendant, which tended to show his guilt. He was then allowed to deny the statements of the officers, and to testify to what conversation he had with them. This was admissible for the purpose of contradicting the testimony of the officers, but was not admissible as substantive evidence of the truth of his statement. The counsel for the defendant was, therefore, properly not allowed to comment upon this as substantive evidence.

3. The first request for instructions was properly refused. The judge had already given full instructions to the jury; and it was within his discretion to decline to give further instructions, and in the form requested. Commonwealth v. Ford, 146 Mass. 131. The instruction asked for is also open to the objection that it called upon the judge to instruct the jury further upon a part of the evidence. McDonough v. Miller, 114 Mass. 94. Neff v. Wellesley, 148 Mass. 487.

4. The second request for instructions was also properly refused. It was based upon evidence which had been excluded. Commonwealth v. Gilson, 128 Mass. 425. Commonwealth v. Sargent, 129 Mass. 115. Exceptions overruled.