Commonwealth v. Allen

• Decision Date: 03 December 1879
• Citation: 128 Mass. 46
• Parties: Commonwealth v. Nathaniel Allen
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 46

Commonwealth v. Nathaniel Allen

Supreme Court of Massachusetts

December 3, 1879

Argued October 23, 1879 [Syllabus Material]

Middlesex. Indictment, in two counts. The first count charged that the defendant, on January 20, 1878, at Lowell, "a certain building, to wit, an elevator building there situate and then and there the property of one Ann E. Ayer feloniously, wilfully and maliciously did set fire to, burn and consume." The second count charged that the defendant, at the same time and place, "a certain building, there situate, to wit, a building then and there used for shops, mechanics' work-shops, and for an elevator and then and there called the elevator building, and then and there the property of one Ann E. Ayer, feloniously, wilfully and maliciously did set fire to, burn and consume."

In the Superior Court, before the jury were empanelled, the defendant moved to quash the indictment for the following reason: "Said indictment contains two counts describing different offences, and contains no averment that the different counts therein contained are different descriptions of the same act." Allen J., overruled the motion.

The defendant was afterwards tried before Bacon, J., who allowed a bill of exceptions in substance as follows:

It appeared that the building in question was destroyed by fire on the day alleged in the indictment, the fire being discovered at about half-past six o'clock in the morning. The defendant contended that he left Lowell at ten o'clock on the previous night, proceeded to Groton in a carriage, put up at the Central House there about midnight, and returned to Lowell about eleven o'clock on the day of the fire.

Caleb Knight testified, for the government, that he saw the defendant at the fire about eight o'clock; and, against the defendant's objection, he was allowed to testify that he was at work removing cars loaded with potatoes from near the fire, when the defendant came up to him and inquired, "How many bushels of potatoes have you here?" and that the witness replied, "I don't know, and if I did, I would n't tell you." Before admitting this evidence, the judge inquired whether the defendant denied that he was there at the time, and he replied that he denied that he was there before eleven o'clock.

Enoch R. Blair testified for the government that he owned part of the personal property burned in the building; that he and the defendant had been connected in business from January to June, 1877; that difficulties had arisen between them, and the defendant had told him that he would be even with him yet, and would pay him, and would make it hot for him. On cross-examination, it appeared that Blair had caused a complaint for forgery to be made against the defendant; and that the defendant had brought an action against Blair for malicious prosecution. For the purpose of showing bias and interest in Blair, and that the words thus used by the defendant were not used as a menace of injury to Blair's property by burning, the defendant offered in evidence the original writ and declaration in a civil action, together with the docket entries relating thereto, entered in the Superior Court at December term 1877, and still pending therein, in which the defendant seeks to recover damages of Blair for maliciously prosecuting him, Allen for said alleged forgery; but the judge excluded this evidence. For the same purposes, the defendant offered in evidence a certified copy of said complaint, which Blair caused to be made against him in June 1877, in the Municipal Court of the city of Boston, for said alleged forgery, and a certified copy of the record of the proceedings thereon in that court, with an order dismissing the complaint, after a hearing on the merits, for want of probable cause to hold Allen to bail thereon; but the judge excluded this evidence.

William R. Hoar testified for the defendant that he was the keeper of the Central House in Groton; and that the defendant put up there after midnight preceding the fire, making in his presence at the time the following entry on the register of the hotel: "W. C. Johnson and wife, Fitchburg, Mass." The government contended that the defendant did not make that entry; or, if he made it, that he made it at another time; and standards were introduced, by the defendant, of his handwriting. For the purpose of showing that the defendant wrote said entry, he offered in evidence certain paper writings, written by him since this prosecution was begun, for the purpose of being used as evidence, containing the identical words of said entry and none other; but the judge excluded them.

William W. Morse and John G. Sherburne testified for the government that they severally owned a part of the personal property destroyed by the fire; that there had been difficulties between them and the defendant in August or September, 1877 and that the defendant then said they would wish they had let him alone, that he would be even with them yet, and that he would "beat" them yet. For the purpose of showing that whatever hostile feeling the defendant then had towards the witnesses had passed away prior to the fire, and that, in December 1877, and afterwards up to the time of the fire, the defendant dealt with them on friendly terms, and also for the purpose of showing bias on their part, the defendant offered in evidence their several affidavits, given by them respectively on February 24, 1879, and filed in a case of the assignee in bankruptcy of the defendant in equity, against the latter's wife and others, tending to show that Morse and the defendant had bought and sold divers parcels of real estate and mining property to each other in December 1877, on friendly terms, and also tending to show that the witnesses, when they gave the affidavits, sought to injure the defendant and his wife by voluntarily and maliciously aiding the plaintiff in said case. Upon the affidavits being offered in evidence, the judge asked the defendant to point out any part of either of them which would be competent evidence upon the issues...