Commonwealth v. Howe , 84 Mass. 153 ( 1861 )

Hoar, J.

It is true, the fact that the defendant’s mother did not receive the stolen watch from her son had no tendency to prove that he did not tell the government’s witness that he gave it to her. Commonwealth v. Parker, 2 Cush. 226. Collins v. Stephenson, 8 Gray, 438. For the purpose of contradicting the witness, therefore, the testimony to this fact was rightly excluded. But we think the confession of the defendant, which , was put in evidence, tended to prove the fact of the commission of the larceny by him. It would have been a material fact .for the prosecution to show that, soon after the larceny was committed, the defendant was in possession of the stolen property, and gave it to his mother. The other evidence in the.case might make this particular piece of proof of little consequence, but it would still be material. Evidence is material, not only when it is essential as a part of the case, but when it has any legal tendency to prove the fact in issue. The witness testified that the defendant said that the watch was in Cambridge; that he could not get it, because his mother had it, and would not give it up. We think the jury might infer from this statement that the defendant had had the watch, and had given it to his mother. In connection with the proof that he had access to the premises where the larceny was committed, and that he had been at Cambridge, the circumstance that the watch was at Cambridge soon after, and with his knowledge, would certainly have been competent for their consideration, if proved by other means than by his confession. His confession was one legal method of proving it; and his right to disprove it could not be taken away, because other admissions by him made this particular statement of very little consequence.

The other rulings at the trial to which exceptions were taken seem to us entirely correct; but the testimony of the defendant’s mother ought to have been admitted.

Exceptions sustained.