Commonwealth v. Fagan

Ames, J. At the trial, it was not denied that the robbery had been committed. The only matter really controverted was the question whether the defendants were sufficiently identified as the robbers. The person who had been robbed was permitted to testify that he gave to the police officers a description of the persons who assaulted him ; and the officers were also permitted to testify, in substance, that by means of that description they recognized the defendants as the assailants. According to the .decision in Commonwealth v. Moulton, 4 Gray, 39, it would have been improper to have asked the first witness what he said to the officers. Nothing that he could have so said, in the absence of the defendants, would have been admissible as evidence against them. It would be immaterial whether he described them by their names, or by giving details as to dress, size or height. The argument of the district attorney was, that, as he gave such a description that the officers understood the defendants to be the persons described, and as their arrest was made because of that supposed identification, the jury were justified in drawing an unfavorable inference upon the question of identity, and as to the guilt of the defendants ; in other words, that the interpretation given by the officers, to a declaration which was inadmissible as evidence, was itself evidence against the defendants. It appears to us that in this way the prosecution was allowed indirectly, and for that reason the more to the prejudice of the defendants, to introduce incompetent evidence, and to use it in an unwarrantable manner. Commonwealth v. James, 99 Mass. 438. Exceptions sustained.