Perry v. Breed

Gray, C. J. This seems to the court to be rather a question of form of proceeding and regularity of practice, than of substance. In strictness, after the bill of exceptions has been once allowed and has been entered in this court, this court has exclusive jurisdiction of it, and the judge below cannot alter it without the authority of this court. But it is the well settled practice, on motion of either party to the full court, before argument upon the bill of exceptions as allowed, when there is reason to believe that there may have been a mistake or omission in drawing up the bill of exceptions, and especially upon a certificate of the judge to that effect, to postpone the argument upon the exceptions, in order to afford opportunity for a hearing of both parties before the judge below on the proposed alteration, and to allow the exceptions to be amended in accordance with the result of that hearing as certified by him. McCarren v. McNulty, 7 Gray, 139. Johnson v. Couillard, 4 Allen, 446. Culley v. Doe, 3 P. & D. 539; S. C. 11 A. & E. 1008. In the present case, the object of the judge in having another hearing, without waiting for a motion to this court, doubtless was to save trouble and delay to the parties. But as it does not' appear that the plaintiff’s counsel assented to such hearing or to any alteration of the exceptions as allowed, they are entitled, if they desire it, to have the case stand over for further hearing before the judge below. Ordered accordingly. The plaintiff’s counsel then elected to argue the exceptions as amended, according to the certificate already transmitted. Morton, J. 1. The slander relied on was the statement made by the defendant to the witness Newell. But the plaintiff put in [165] evidence tending to show that the defendant had a conversation with the chairman of the police commissioners, in which he uttered the same slander. It was competent for the plaintiff to put in this or any other repetition of the slander charged, upon the question of malice. But having introduced evidence of this conversation, it was the right of the defendant to testify to, or to prove in any other mode, the whole of the same conversation. The testimony of the plaintiff and of Bates as to this conversation was therefore admissible. 2. The testimony of the police commissioners, that the statements made by the defendant did not induce them to refuse to appoint the plaintiff as one of the state constables, was competent under the pleadings. In the second count of his declaration the plaintiff alleges as special damage that by reason of the slander uttered by the defendant he was prevented from obtaining an appointment as one of the constables of the Commonwealth. After he had put in his case, he gave notice that he did not rely upon this count. But he had introduced evidence tending to support this count and to prove the special damage alleged. This evidence, if uncontrolled, would naturally affect the minds of the jury unfavorably to the defendant. The testimony offered by the defendant to rebut or control it was within the issue presented by the pleadings, and it was within the discretion of the presiding judge to admit it. Bannister v. Alderman, 111 Mass. 261. 3. The bill of exceptions does not show that the testimony of Batchelder was improperly rejected. It was undoubtedly competent for the plaintiff to contradict the defendant by proof of any declaration or act by him inconsistent with his testimony. But Batchelder was not offered to prove that the defendant had made any statements directly contradicting his testimony upon the stand. The offer was to show that he and the defendant had talked over the affair of the robbery at various times after it took place, while they were in partnership, and on the question who could have been concerned in the robbery, and that the defendant had never said anything to the witness about any policeman’s having called to see him, or about his having put the bookkeeper in the closet. The admission of evidence of this character must be, to some extent, within the discretion of the court. If a witness has made a previous statement of the transaction in regard to which [166] he testifies, under such circumstances that he was called upon as a matter of duty or interest to state the whole truth as to the transaction, it might be competent to put such previous statement in evidence,-to show that he then omitted material parts of the transaction to which he now testifies. The fact that he did not then state the omitted parts may afford some presumption that they did not happen, and thus tend to contradict his testimony. Of this character was the case of Hayden v. Stone, 112 Mass. , in which a witness for the plaintiff having testified that a former owner of a piece of land had stated to him that he owned beyond the fence which was its apparent boundary, the presiding judge permitted the defendant to show that the witness was one of three appraisers of the estate of such owner, and when appraising this- land did not state that the late owner claimed beyond the fence. It was his duty, as appraiser, to inform his associates of his knowledge as to the extent of the land to be appraised ; and the fact that he did not inform them that the owner claimed beyond the fence, afforded some presumption that he was mistaken when he testified that the owner had so informed him. The exception to the admission of this testimony was therefore overruled. But the admissibility of such evidence depends upon the question whether the previous statement was made under such circumstances that such presumption or inference fairly arises. In the case at bar, the plaintiff did not offer to put in the conversation with Batchelder, and the bill of exceptions does not disclose the circumstances under which they took place, and therefore does not show whether, from the fact that the defendant did not state to Batchelder certain parts of the transaction as he now relates it, any reasonable inference can be drawn that he is not now stating the truth. The bill of exceptions does not state a case which shows any error in excluding the testimony. 4. The exception to the ruling that the jury should find for the defendant if the words uttered by him were true cannot be sustained. The objection was that the truth was not pleaded as a justification. It was pleaded substantially, though not with technical precision. The evidence had been put in, and both parties had conducted the case, upon the ground that one of the issues raised by the pleadings was the truth as a justification, and the plaintiff took the objection, which is a purély technical one, toe late. [167] We have considered all the exceptions taken at the trial. No exception was taken to the charge of the presiding judge at the trial, and none is now open. Exceptions overruled.