Eames v. Whittaker , 123 Mass. 342 ( 1877 )

Morton, J.

1. Upon grounds of public policy, communications which would otherwise be slanderous are protected as privileged, if they are made in good faith in the prosecution of an inquiry regarding a crime which has been committed and for the purpose of detecting and bringing to punishment the criminal. The instructions in this case at the trial were substantially in accordance with this rule and were correct.

2. It is not shown that there was any error in the rejection of the testimony of the witness Mulchay. The declarations made by the son of the defendant were not admissible as proof of the facts he stated. They were immaterial and incompetent, unless they tended to contradict him upon some part of his testimony material to the issue. Foot v. Hunkins, 98 Mass. 523. The bill of exceptions does, not show what the testimony of the son was, and therefore does not show that the offered testimony of Mulchay had any such tendency. The fact that the defendant’s son, on his cross-examination, had denied that he made these declarations, does not give the plaintiff the right to put them in evidence. The plaintiff, having cross-examined the witness upon an irrelevant and collateral matter, is concluded by his answers, and cannot be allowed to contradict them.

3. The testimony of Rice, to the effect that the defendant had told him that “ he had no doubt that the plaintiff was the one who entered and robbed his house ” would have been competent, to show motive, as a part of the plaintiff’s case in chief. But it was within the discretion of the court, in the ordering of the course of the trial, to exclude it at the stage at which it was offered. Strong v. Connell, 115 Mass. 575.

Exceptions overruled.