Brainerd v. Draper ( 1883 )

The opinion of the court was delivered by

Rowell, J.

Plaintiff referred to his diary to refresh his recollection of what transpired on a certain occasion, and sought not to strengthen the memorandum as evidence by showing that he was in the habit of keeping memoranda of current events. Showing by the diary that he had no such habit would neither have contradicted him nor lessened the force of the memorandum as evidence. It was competent for the court to limit the use to be made of the book as it did. Commonwealth v. Haley, 13 Allen, 587; Commonwealth v. Jeffs, 132 Mass. 5 ; 1 Whart. Ev. s. 525.

It does not appear for what purpose counsel were examining the bank books when their further examination was stopped by the court. It was while the witness was testifying in chief. Their examination does not appear to have been asked for nor refused on cross-examination. No error is apparent.

What Lawrence JBrainerd testified to in rebuttal seems to have been in accord with plaintiff’s opening. But if not, it was harmless to defendant, and not vitiating error.

The court properly omitted to comply with defendant’s second request. It embodied the legal proposition that non-protest was evidence of a crime having been committed, whereas crimes are never to be presumed, even in the trial of civil issues, and evidence is to be reconciled with innocence rather than regarded as indication of guilt. When an act or a fact is fairly susceptible of two interpretations, one lawful and the other unlawful, the lawful will be adopted. 2 Whart. Ev. s. 1249. Here, the fact of non-protest was evidence of a waiver of protest rather than of a fraudulent alteration of the note.

Judgment affirmed.