Commonwealth v. Brayman

• Decision Date: 28 February 1884
• Citation: 136 Mass. 438
• Parties: Commonwealth v. Erastus W. Brayman
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 438

Commonwealth v. Erastus W. Brayman

Supreme Court of Massachusetts

February 28, 1884

Franklin. Indictment on the Gen. Sts. c. 161, § 59 alleging that the defendant, on February 10, 1876, at Buckland, conveyed certain real estate, knowing that an incumbrance existed thereon, without, before the consideration was paid, informing the grantee of the existence and nature of such incumbrance. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions, in substance as follows:

At the time of the conveyance, the defendant was sixty-nine years old, and the trial was six years after. He introduced several witnesses to show that his mind and memory were so enfeebled by age and infirmity as to render it probable that he had forgotten the prior incumbrance. These witnesses were allowed to testify that he was broken with age at the time, and to all other facts in his conduct indicating a loss of mind and memory.

One Jillson, who testified that he had known the defendant twelve years, and had business transactions with him, was asked by the defendant, "Did you notice any difference in his mode of conducting business six years ago from his mode twelve years ago?" This question was excluded; but the witness was allowed to state any act of the defendant, or fact, showing any change in his mode of doing business. One Bassett, who had testified that he had been well acquainted with the defendant twenty years and more, and had done business for him, was asked relative to the defendant's condition, "whether six years ago he had failed." This question was also excluded. Both these witnesses were allowed to testify to any acts or conversations and business transactions of the defendant, indicating a loss of memory or mental weakness. Chester C. Conant, judge of probate testified, that, in his judicial capacity, he had been accustomed to study and decide, upon evidence, questions relating to the capacity of men as to mind and memory; that he had known the defendant since 1860; and testified to certain facts in his conduct indicating loss of memory. The defendant asked him, "What in your opinion was the defendant's capacity six years ago?" and, "Was he a man capable of performing the ordinary business of life six years ago?" These questions were excluded. The defendant then asked whether at that time the defendant had grown imbecile by age or any other cause. This question was also excluded. This witness was also allowed to testify to any and all conversations and acts of the defendant indicating a want of memory or mental capacity.

The foregoing questions, put to the witnesses Jillson, Bassett, and Conant, who possessed no peculiar skill or professional experience, were excluded, on the ground that a non-expert witness is not allowed in such cases to state his opinion concerning the mental incapacity or unsoundness of a person, though founded on facts in the appearance or conduct of such person testified to by the witness from his own observation, and tending to sustain such opinion.

The defendant's counsel then introduced the defendant as a witness, and, to show that his mind was affected by pecuniary losses at the time he made the conveyance, asked him, "Had you met with a great loss of property just prior to this affair?" But the judge excluded the question.

The jury returned a verdict of guilty; and the defendant alleged exceptions.

Exceptions sustained.

H. Winn, for the defendant.

E. J. Sherman, Attorney General, for the Commonwealth.

Col...