Commonwealth v. Brayman

Colburn, J. We see no reason for excluding the question to the witness Jillson, “Did you notice any difference in his mode of conducting business six years ago from his mode twelve years ago ? ” It called for no opinion of the mental capacity of [440] the defendant. It would be sufficiently and naturally answered by “Yes” or “No,” and was of little importance, except in directing the attention of the witness to the subject upon which he was expected to testify. If the question was answered in the negative, no further inquiry would be necessary; but if in the affirmative, the answer would lead to the inquiry as to what facts he had noticed. But as the witness was allowed to state any act of the defendant, or fact, showing any change in his mode of doing business, perhaps no harm was done to the defendant by excluding the question; and upon that ruling alone it is unnecessary to decide whether the exceptions should not be sustained. The question to the witness Bassett, which was excluded, whether six years ago he had failed, is of more importance. We think that any witness of ordinary intelligence, who is fa miliarly acquainted with a person, may testify whether, within a given time, he has failed, mentally or physically. It is essentially a question of fact, the result of his observations, and no more involves an opinion than a great variety of questions upon which witnesses are always allowed to testify. A person may well know that another has failed within a certain period, and yet be unable to recall or narrate the details of the observations from which his knowledge has been acquired, so as to convey any adequate idea of them to others. We think the question should have been admitted. Barker v. Comins, 110 Mass. 477, 487. Parker v. Boston & Hingham Steamboat Co. 109 Mass. 449. See Commonwealth v. Sturtivant, 117 Mass. 122, and cases cited; Commonwealth v. O'Brien, 134 Mass. 198. The questions put to the witness Conant called for opinions as to the actual mental condition and capacity of the defendant. In this State, experts only and subscribing witnesses to wills have been permitted to give opinions upon questions of sanity, or mental condition and capacity, and only persons of scientific training upon the subject and physicians have been regarded as experts, and we see no reason for including any other persons, unless all persons who have had opportunities for observation of the mental state of the individual in question are allowed to give opinions upon the subject, as they are in many States. It does not appear that these questions were not properly excluded. [441] Ifc is well known that a great reverse of fortune may have such an effect upon a person advanced in life, that the disappointment, anxiety, and solicitude caused by it may seriously impair the mind and memory, the effect depending largely upon the state of health, disposition, temperament, and other circumstances in each particular case. When the state of mind of a person so far advanced in life as the defendant is in question, and there is evidence tending to show loss of mind and memory, we think the fact that he had met with a large loss of property shortly before the act with which he is charged, admissible in evidence, not as in itself evidence showing loss of mind or memory, but to be considered by the jury, under proper instructions, in connection with the other evidence, to receive such weight, as explanatory or confirmatory of other evidence, as they may consider it entitled to; and that the question put to the defendant should have been allowed. Exceptions sustained.