Commonwealth v. Wood.

The defendant introduced evidence that he had not overdriven the horse, and that he at any rate had not wilfully done so; and also to what extent he was acquainted with horses and had to do with them.

The defendant offered evidence tending to show that the owners of the stable had been requested by his parent, since the previous April, not to let horses to him, but the judge excluded it.

The defendant's mother testified, as a witness for him, that she had seen him driving, and that he was not then overdriving the horse. On cross-examination, the Commonwealth inquired of her about a conversation between her and one Baker, a witness for the Commonwealth, and whether she had not told him that her son was guilty, and she would advise him to plead guilty. She denied having said so, and stated what she did say in that conversation. The defendant reëxamined her as to what Baker had said. The Commonwealth then offered to show by Baker that she told him that her son was guilty, and she would advise him to plead guilty. The defendant objected; but the judge allowed Baker to testify only to her saying that the defendant was guilty, as tending to contradict her testimony that she had not seen him overdriving the horse.

The defendant asked the judge to instruct the jury as follows: "The Commonwealth must prove not only that the defendant has overdriven this horse, but that he knew he was overdriving, and actually intended to do so. It is not enough to show that the defendant ought to have known that this horse was overdriven, but it must appear that he actually did know, and intended to do it. If he was not accustomed to have to do with horses, and not acquainted with the proper mode of treating them, this is to be considered by the jury in deciding whether he actually intended to overdrive this horse."

The judge declined to give these instructions as requested, and instead thereof instructed the jury "that the Commonwealth must prove that the defendant overdrove the horse knowingly and intentionally; that the defendant, like all other men, was presumed to know what he did, and to intend the natural and necessary results of his acts; that if, in the proper exercise of his

Commonwealth v. Wood.

own judgment, he thought he was not overdriving the horse, he must be acquitted; and that upon these instructions the jury might come to the conclusion that it was a question of fact to be determined by the result to which they should come as to the truth respectively of the testimony introduced by the Commonwealth and by the defence."

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

H. N. Sheldon, for the defendant.

J. C. Davis, Assistant Attorney General, for the Commonwealth.

AMES, J. The evidence that the owners of the stable had been requested, on a former occasion, not to let horses to the defendant, was properly excluded. The question for the jury was whether he committed the offence charged against him; not whether it was discreet or judicious to give him the opportunity to commit it.

The defendant's mother, being called by him, had testified that she had seen him driving the horse, and that he was not then overdriving. It was within the ordinary limits of cross-examination for the prosecution to ask her whether she had not said, in speaking of the case, that the defendant was guilty. Upon her answering this question in the negative, she was reexamined by the defendant, as to the alleged conversation. In this state of things, it was competent for the prosecution to prove that she had said so, by way of contradiction of her former statement.

The instructions asked for were properly refused. It was not necessary to prove that the defendant's purpose was to torture or to inflict pain and suffering upon the animal. Pain inflicted in wanton and reckless disregard of the suffering it might occasion, and of the consequences it might produce, would be equally criminal under the statute. The instructions given to the jury were ll that the defendant was entitled to. The jury were told that if, in the proper exercise of his own judgment, he thought he was not overdriving the horse, he must be acquitted," and that he could not be convicted unless upon proof that he knowingly and intentionally overdrove. A "proper exercise of his ow!

Commonwealth v. Snow.

judgment" means the honest exercise of his judgment, as distin guished from mere recklessness of consequences, or wilful cruelty. Under such instructions, the jury would be required to consider his alleged inexperience and want of knowledge as to the proper treatment of horses. Their verdict imports that "knowingly and intentionally" he did wilfully and cruelly overdrive the horse See Commonwealth v. Lufkin, 7 Allen, 579.

Exceptions sverruled.

COMMONWEALTH vs. JAMES A. ¿NOW.

On an indictment for sodomy with J. S., evidence was admitted, against the defendant'ı objection, that, a week after the alleged crime, tae aefenaant, in soliciting a boy to commit a like offence, said "he had done it witn owner boys." The judge instructed the jury that if the defendant in this language invended to include J. S., the evidence was competent; but if he did not so intend, they were to exclude it from their consideration. Held, that the defendant had no ground or exception.

On an indictment for sodomy with J. S., . S. testified to the commission of the crime at a certain time in the defendant's rooms and that he heard a noise at an outer door at the foot of the stairs to the rooms; that the defendant went down and unlocked the door, and said to some one that he had locked because he was having a nap; and that he saw a woman pass by the door of the defendant's rooms, and go up stairs. A woman who lived over the defendant's rooms testified that she came at said time to the outer door, which was always kept open, and found it locked; that the defendant came down and said he locked the door, because he was having a nap; and that she went up stairs past the door of his rooms. A physician testified that he was called to J. S., who had taken poison, and that after his return the defendant came to the office of the witness and asked if J. S. had said why he took poison. A boy testified that the defendant, a week after the alleged crime, solicited him to commit a like offence, and said he had done it with other boys. Held, that this was sufficient evidence in corroboration of J. S. to warrant & conviction, even if J. S. was an accomplice.

On an indictment for sodomy with J. S., J. S. testified to the commission of the crime, but denied his voluntary participation therein. The district attorney admitted in argument that J. S. substantially acquiesced in the act, and must be regarded as an accomplice and in need of corroboration. The defendant requested the judge to rule that it followed from this admission that J. S. knowingly and wilfully testified falsely; and that therefore the defendant could not be properly convicted upon his testimony. The judge refused so to rcle. Held, that the defendant had no grand of exception.

INDICTMENT charging the defendant with having committed sodomy with Willard A. Smith. Trial in the Superior Court in Suffolk, before Lord, J.

Commonwealth v. Snow.

Willard A. Smith testified "that on Sunday, August 20, 1871, between 12 and 1 o'clock, he was passing the building where the defendant had his rooms, and saw the defendant sitting at his window; that the defendant asked him to come up; that he went up, and the defendant locked the outside door; that then the defendant committed the act charged; that while in the act, the witness heard a loud rapping at the outside door, and the defendant went down and let somebody in; that he heard the defendant say he had been having a nap, and so locked the door; that the door from the defendant's room into the hall was open a little, and the witness looked out through the crack and saw the defendant and a Mrs. Morse come up stairs, and then saw Mrs. Morse go up the next flight; and that then the defendant came into his rooms again.' He testified not only to the acts committed at the time charged in the indictment, but also to various other acts of a similar nature; and that all these acts were against his will and his resistance.

Mrs. Morse testified "that she occupied the third floor, and the defendant and his partner the second floor of the building, that the entrance to both floors was from the street, by a common outside door which was always open during the week, except in the night-time; that on Sundays it was always locked in the morning until some one came and opened it; that on August 20, 1871, between 11 and 12 o'clock in the morning, she went out of the building; that the outside door was then open; that she returned between 12 and 1 o'clock, and found the outside door locked and a key on the inside; that no key was usually kept in this door; that she tried the door hard and shook it, and in a few minutes the defendant came down stairs, unlocked it and let her in, saying to her that he had been having a nap, and that was why he locked it; that she and the defendant then went up stairs; that when they reached the second floor the defendant stopped and watched her go up stairs out of sight; and that sB knew of no one else being in the building at the time."

There was evidence tending to show "that the outside door was a common door not only to the rooms of the defendant and to those of Mrs. Morse, but to the rooms of another tenant; that

Commonwealth v. Snow.

it was locked only at night; and no other instance of any tenant having locked it in the daytime was in evidence; and that one Haynes, the partner in business of the defendant, was liable to enter the defendant's rooms, which were secured only by a night latch."

One Bean, a physician, testified that on the evening of September 5, 1871, he was called to attend Smith, for having taken poison, and went and prescribed for him; that on the same evening, while sitting in his office, the defendant called at about 11 o'clock, and asked him how Smith was, and if he would die; that the witness said it was uncertain; that the defendant then asked if Smith had told why he took it, or words to that effect; that the witness told him he had not; and that the defendant asked the witness the same question twice after this, once as he was sitting at his window a day or two afterwards, and once at an apothecary's shop, two or three days afterwards.

One Holt, a physician, testified that he was in Bean's office the first time the defendant called, and heard a part of the conversation between the defendant and Bean. His testimony to its effect was the same as that of Bean.

One Emerson was allowed, against the defendant's objection, to testify that the defendant, on August 27, 1871, attempted to commit the same offence with him, and said that it would not hurt him, and that he had done it with other boys.

The testimony of Bean, Holt, Mrs. Morse and Emerson was all the evidence that bore upon the question whether Smith was corroborated.

In his argument, the district attorney said that although Smith had testified that the acts were against his will and resistance, still he did not believe that there was such resistance as ought to have been made by Smith, and that notwithstanding any partial resistance, unwillingness or reluctance, he believed that substantially Smith acquiesced, and that in this view he agreed that he was in the situation of a confederate or an accomplice, and required corroboration.

The judge instructed the jury that, in order to make the testimony of Emerson competent, the jury must see, "either from the