Commonwealth v. Charles , 105 Mass. 62 ( 1870 )

Wells, J.

1. We are not prepared to agree to the legal proposition, contained in the defendant’s prayer for instructions, that identification, by voice alone, of a person whose voice has been previously heard by witnesses but once, was insufficient and too uncertain, and'that no conviction could be had thereon. The voice is one means of recognition and identification. The degree of certainty of identification by that means does not depend upon the ability of the witness to describe its peculiarities. It is for the jury only to determine how much reliance should be placed upon such testimony.

But the court was not bound to rule upon that evidence, apart from the other circumstances tending to connect the prisoner with the offence charged. The instructions upon this point were carefully given, and, to say the least, sufficiently favorable to the defendant.

2. The testimony of several witnesses, that they saw Williams at various places in the neighborhood, on the day preceding the night of the robbery; that he made inquiries and statements about purchasing tobacco, in a manner which indicated that they were mere pretexts; that he had apparently some connection with two other strangers whom he met at the hotel; was competent as circumstantial evidence in connection with the narration given by Ball. The admission in court that the defendant was at Ball’s house that afternoon could not deprive the government of the right to introduce the testimony from the witnesses, even if it had covered the whole ground of the testimony offered, which it did not.

3. The testimony of Oscar Ely, upon the examination of Montrose and Stevens before a trial justice, “ that it was Montrose who had the pleasant voice,” did not call for any contradiction or reply from Ball. It does not necessarily contradict the testimony of Ball given upon the trial of Williams. The evidence of Ball’s omission to make any counter-statement before the trial justice, where he was a witness merely, and was not inquired of in relation to the matter, after Ely had testified, was properly excluded.

4. The witnesses, offered as experts, had had some practical experience in the comparison of handwriting. There is no rule of law fixing the precise amount of experience or degree of skill necessary to constitute an expert. All that is open to inquiry and proof at the trial. The judge must, in the first instance, pass upon the admissibility of the witness; and then, if admitted, the jury judge of the weight and credit to be given to the testimony. The question is one mainly of fact. It is only when there appears some error in law, in determining the question of admissibility ; or when there is no competent evidence to prove proper qualification of the witness, that the decision of the presiding judge is reversed on exceptions. No such error or deficiency of proof appears in this case.

5. The portions, excluded from the depositions taken to prove an alibi, had a tendency to account for the fact that Williams was in New York at the time of the robbery, consistently with the proof that he was in Holyoke during the day previous ; and thus to avoid the effect of a conflict with the greater part of the testimony for the government. They consisted entirely of the defendant’s own declarations. It was the duty of the court therefore Co exclude them, unless they were competent upon some legal ground and for some other purpose than as declarations.

The defendant contends that the declarations were competent to show the means of knowledge, and certainty of recollection, of the witnesses, both as to the fact of his presence at the ball, and as to the occasion or date of the interview. But the witnesses had testified to the fact of his presence at the ball; had certified their recollection by the circumstances of talking and drinking witn him; had identified the occasion by the circumstances that it was a ball succeeding an excursion of a target company, upon the evening of the same day, and that Williams had failed to be present at the excursion, although expected to “ help fill out the ranks.” These circumstances sufficiently identify the occasion; enable the date to be fixed with certainty, and remove any question as to accuracy of recollection, if the witnesses are to be credited. It does not appear that the several witnesses testify of one and the same conversation. Each speaks of conversations with himself. Aside from the truth of the statements as declarations, the conversations did not furnish any connecting link between other parts of the testimony, or show that the several witnesses were testifying of the same occasion, as in Earle v. Earle, 11 Allen, 1. They did not supply an additional or independent test of the correctness of the statements of the witnesses, as in Holyoke Paper Co. v. Conklin, 2 Allen, 326. They were not required in' order to connect the occasion with another event, the date of which could be fixed with greater certainty, as in Goodhand v. Benton, 6 Gill & Johns. 481.

If offered as aids to recollection, or as showing a reason for remembering the facts stated, or by way of corroboration, such declarations might be admissible, if otherwise unobjectionable, but it would be as a matter within the reasonable discretion of the court; and no exceptions would lie to their exclusion. Ashley v. Wolcott, 11 Cush. 192. Robinson v. Fitchburg & Worcester Railroad Co. 7 Gray, 92.

In the present case, we think the exclusion of these declarations of the defendant was right and proper.

Mxcevtions overruled.