Commonwealth v. Morgan , 159 Mass. 375 ( 1893 )

Morton, J.

The defendant was identified by Wright and another witness for the government as the 'man who stepped up to him in the bank and engaged him in conversation, and simultaneously with whose departure Wright discovered that the notes, orders, and book were gone. The jury was not bound to believe the testimony as to the alibi. It was for the jury to say, upon all the evidence, whether the defendant was in the bank at the time the witnesses for the government said he was, and whether he took or had a hand in taking the notes and orders which he was accused of stealing.

One of the government witnesses said that the defendant had at the time side whiskers and a mustache. As bearing on the question of identity, certain witnesses for the defendant testified that they had known him since the spring of 1887, and that he had never worn side whiskers. The photograph was properly admitted for the purpose of showing that when it was taken, which was in July, 1887, the defendant wore side whiskers, and thus of contradicting the witnesses, who had testified to the contrary. Blair v. Pelham, 118 Mass. 420. Randall v. Chase, 133 Mass. 210. Commonwealth v. Goodnow, 154 Mass. 487. Commonwealth v. Campbell, 155 Mass. 537. Whether it was sufficiently verified was for the presiding justice, and his decision is not subject to exception, Blair v. Pelham, ubi supra.

The defendant has argued other points upon which he does not appear to have taken any exceptions or asked any ruling, and which cannot be raised here for the first time. We have considered only the points on which exceptions were taken and which have been argued. Exceptions overruled.