Commonwealth v. Cunningham , 104 Mass. 545 ( 1870 )

Ames, J.

The only question that appears to have been in controversy was whether the defendant was sufficiently identified as the person who committed the crime charged in the indictment. The general circumstances of the transaction were not in dispute. Upon this question of identity, the evidence offered was all of it competent, and proper for the consideration of the jury. It is impossible to say that it had no tendency to convict the defendant. Its sufficiency was to be estimated and weighed exclusively by them. It is not necessary that any one witness should distinctly swear that the defendant was the man, if the result of all the testimony, on comparison of all its details and particulars, should identify him as the offender. The principle which allows evidence to go to the jury necessarily involves a right, on their part, to believe it, and if its effect upon their minds should be to prove the defendant’s guilt beyond reasonable doubt, their verdict will be rendered accordingly.

The course of argument on the part of the prosecuting officer, as exhibited by the bill of exceptions, appears to have been in some respects objectionable. Under such circumstances, it became the duty of the presiding judge to caution the jury to confine their attention to the legitimate evidence, and to try the case strictly upon its merits. The bill of exceptions shows that this duty was not overlooked, and -we have no reason to doubt that it was adequately performed. We are bound to presume that the jury appreciated and obeyed his instructions. Commonwealth v. Byce, 8 Gray, 461. Smith v. Whitman, 6 Allen, 562.

Exceptions overruiea.