Commonwealth v. Phillips , 162 Mass. 504 ( 1895 )

Barker, J.

1. The exception to the refusal of the court to allow a witness for the defence to testify to a statement which had already been testified to upon cross-examination by a witness examined for the prosecution, is not argued upon the defendant’s brief, and is waived.

2. The defendant’s contention that the testimony of the children as to their own ages was incompetent, because hearsay, is unsound. Such testimony has been repeatedly held competent. See Hill v. Eldridge, 126 Mass. 234, and cases cited; also Commonwealth v. Stevenson, 142 Mass. 466.

3. There was no error in the instruction that to determine the age of the children the jury might take into consideration the appearance of the children in connection with their testimony. Whether their appearance tended to corroborate or to disprove their testimony is not stated, and in either case the appearance of a witness is a proper element for the consideration of a jury in weighing his testimony.

4. The question to the mother of one of the children, whether her child complained to her “ of what this man Phillips had done,” was improper in form, because it introduced the name of the accused, and it would no doubt have been excluded if objection had been made to the question upon that ground. But no such objection is shown to have been made. The objection is not shown to have called the attention of the presiding justice to the point now raised; nor was a request made to withdraw the question and the answer from the consideration of the jury. The answer was a simple affirmative coupled with the statement of the times when complaint was made by the child, and the exception must be overruled. Exceptions overruled.