In re Petition of Mackintosh

• Decision Date: 28 June 1929
• Citation: 268 Mass. 138,167 N.E. 273
• Parties: Petition of MACKINTOSH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 138

167 N.E. 273

Petition of MACKINTOSH.

Supreme Judicial Court of Massachusetts, Norfolk.

June 28, 1929.

Petition by Herbert B. Mackintosh to establish the truth of exceptions taken at a trial before a jury in the superior court. Petition dismissed.H. B. Mackintosh, of Needham, pro se.

RUGG, C. J.

This is a petition to establish the truth of exceptions alleged to have been taken at a trial before a jury in the superior court. The bill of exceptions as filed was disallowed, simply because not in conformity with the truth. No certificate of further reasons was filed by the judge. The case was referred to a commissioner, and is considered upon his report. Sixteen exceptions were claimed in the bill as filed. Of these the commissioner found that 6 were not saved as stated, and that five related to questions put and excluded, as to some of which an offer of proof was stated in the bill, where no offer of proof was in truth made, and as to others of which no offer of proof was made. It is familiar law that the exclusion of a question where no offer of proof is made commonly affords no good ground for exception. Cook v. Enterprise Transp. Co., 197 Mass. 7, 10, 83 N. E. 325. Five only are found to be stated with sufficient accuracy in the bill.

The commissioner further reports: ‘In the bill of exceptions there are set forth certain excerpts from the charge of the trial judge. These excerpts, standing by themselves, do not give as balanced and true a picture of what the court said to the jury as they would if read in the light of other statements in the charge which are not included in the bill. The petitioner sets up the claim before the commissioner that, if there had been incorporated in the bill of exceptions certain provisions of the charge which the defendants sought to have incorporated therein, the bill would have been unduly long. But upon an examination of the bill, as well as of the entire charge of the court as disclosed by the trial record, I find that this suggested difficulty could have been met in good faith by omitting certain parts of the charge already in the bill. This could have been done by the plaintiff without the sacrifice of any supposed substantive advantage. There could then have been incorporated in the bill certain other portions of the charge, as sought for by the defendants and as suggested by the trial judge. This it seems to the commissioner should have been done by the plaintiff in order to...