Commonwealth v. Brown , 150 Mass. 330 ( 1889 )

C. Allen, J.

1. The defendant’s plea of guilty before the magistrate was properly received as a confession.

2. For the purpose of refreshing the recollection of a witness who is forgetful, or apparently unwilling, and of bringing to his mind the transaction respecting which he hesitates to testify, the court may properly allow a question to be put to him whether he has not on another occasion made a statement in reference to it. If he says yes, one step is gained towards obtaining his direct testimony upon the matter which is material, and further questions are usually put in order to get if possible some positive testimony as to the particulars. His bare declaration that on a former occasion he made a statement upon the subject is of itself of no significance, and, unless followed up by further inquiry, should be disregarded. The witness Brown, having testified that he did not remember the supposed admission of guilt by the defendant, might properly be asked, as preliminary to further inquiries, if he did not make a statement in respect to it to the trial justice. Melhuish v. Collier, 15 Q. B. 878. Bullard v. Pearsall, 53 N. Y. 230. But when no further inquiry was made, the defendant might well have asked that the jury be instructed to disregard the answer already given, if such request were necessary. That answer, though properly received when given, became simply immaterial, and there is nothing to show that it was afterwards treated as evidence of an admission of guilt by the defendant, or even as evidence under the Pub. Sts. c. 169, § 22, to discredit the witness.

jExceptions overruled.