New Hampshire Fire Insurance v. Healey

24 N.E. 913, 151 Mass. 537, 1890 Mass. LEXIS 260

• Court: Massachusetts Supreme Judicial Court
• Decided: June 18, 1890
• Status: Published

Opinion

C. Allen, J.

The evidence was not objectionable on the ground that it disclosed what took place before the grand jury. The time had passed when secrecy was important. Commonwealth v. Hill, 11 Cush. 137. Commonwealth v. Mead, 12 Gray, 167. Way v. Butterworth, 106 Mass. 75.

It is, however, now objected that the evidence was not sufficiently specific to be admissible, since it did not identify which one of the Healeys made' the statement in question. It is admitted upon the defendants’ brief that they were partners, but it is contended that, in testifying before the grand jury, what either one of them said would not affect the other, and that two persons could not properly be coupled together in this manner in one question. This objection does, not appear to have been specifically taken in this form at the trial. The question was, what the Healeys testified before the grand jury as to the value of the stock which was found in the bags. The defendants objected, without stating any ground of objection; but the court allowed the question to be put, and the defendants excepted. After the answer was given, that, according to the impression of the witness, one or both of the Healeys placed a large value upon it, something like $2,500 to $3,000, the defendants excepted both to the question and to the answer as made, but did not state any specific objection to the answer, and no discussion was had thereon.

If the objection now urged had been taken specifically at the trial, the ground upon which it rests might have been removed. It might, for example, have been shown that both Healeys were together before the grand jury, and substantially agreed in their statements, or, if only one'iwas present, it might have been shown which one it was. If either one of them made the statement above mentioned, it was certainly competent evidence against him. If Mr. Knowlton could testify that one or the other of them made the statement, but he could not recollect which, this testimony would at the least be competent, provided it could be shown otherwise which one it was that so testified. It appears to us that the minds of the court and of the counsel were directed to a different point. Where the objection to testiiiiony is merely general, an exception to its admission should not be sustained upon a technical ground not specified at the trial, apparently not in the mind of the court or of the adverse counsel, and which might have been removed if attention had been called to it. In the opinion of a majority of the court, the entry must be,

• Exceptions overruled.