Commonwealth v. Smith ( 1861 )

Merrick, J.

The evidence of the threatening language used by one of the defendants towards some person on board the steamer which came up to the sloop in which he was sailing, was inadmissible. It occurred long after the alleged perpetration of the mischief described in the indictment; and there is nothing in the bill of exceptions to show that this language was not wholly the result of an altercation which occurred between the parties at the moment when it was uttered. It is not connected by any circumstance or allusion with the supposed misconduct of any one in breaking, defacing or injuring the sloop, which is the substance of the charge against the defendants; and therefore it should not have been allowed to be made a part of the evidence in the case. It had a manifest tendency to prejudice one, and perhaps all of the defendants, in the estimation of the jury, and, being inadmissible, should have been excluded; The exceptions taken by the defendants must therefore be sustained.

As a new trial must for this cause be directed, it is thought unnecessary to consider the other questions presented in the bill of exceptions.

Exceptions sustained.