Commonwealth v. Tolliver , 119 Mass. 312 ( 1876 )

Ames, J.

As one circumstance having a tendency to prove guilt on the part of the defendant, Tolliver, the fact that he concealed himself immediately after the alleged robbery was admissible. This fact could only be proved by evidence that he was sought for and not readily or easily found. Such evidence would be of little weight unless it were nearly connected with the time of the robbery, and therefore, among other particulars in regard to the attempt made to find him, it was necessary and proper to inquire how soon after the robbery the search for him began.

By availing himself of the right to take the stand as a witness, the defendant became a general witness in the case, subject to the same tests of truthfulness, and the same rules as to examina tian and cross-examination as are applicable to all other witnesses. Being sworn to tell the truth, the whole truth, and nothing but the truth, he waived ah right to keep anything back, even in the case of questions, the answers to which would tend to criminate himself. Commonwealth v. Lannan, 13 Allen, 563. Commonwealth v. Mullen, 97 Mass. 545. Commonwealth v. Bonner, 97 Mass. 587. Commonwealth v. Nichols, 114 Mass. 285. Among the modes of impeachment, he, like any other witness may be cross-examined as to a conflicting account of the matter given by him on some other occasion. Such an inquiry may be 'gone into, not for the purpose of proving the truth of the former account, but as an impeachment of his credit as a witness. Day v. Stickney, 14 Allen, 255. He would still be at liberty to testify that his alleged confession was not true, and to offer such explanation as to the inducements and circumstances under which he gave it as he may see fit. Commonwealth v. Howe, 9 Gray, 110. The limitations to which the course of inquiry upon this point was subjected by the court gave to the defendant all the protection to which he was entitled.

The defendant, Tolliver, having offered evidence tending to show that instead of concealing himself, he was publicly walking about the streets before his arrest, it was wholly within the discretion of the presiding judge to allow evidence, on behalf of the prosecution and by way of rebuttal, to the effect that while so in the streets he was under an attempted disguise. The ruling upon that point is not open to exception.

The evidence of the person who had been robbed was not relied upon as sufficient, taken by itself, to identify with entire certainty the bills which had been taken from her. The partial correspondence between some of the bills which she had lost and those found upon Tolliver, three days after the robbery, was evidence competent to be considered by the jury, especially when taken in connection with the stain upon one of the bills which, it was argued, was occasioned by blood from the wound upon the finger of one of the robbers, as described in the bill of exceptions. Some of the bills found upon his person answered to the description contained in the indictment, and we cannot say upon this report that there was no evidence tending to identify one or more of them. Its weight and effect were for the jury to consider.

Exceptions overruled.