Commonwealth v. Meaney

Devens, J.

It is not easy to see how the denial of the defendant’s witness on cross-examination, that he had been arrested for drunkenness, — for so we think his statement must be interpreted, — was met by proving that the witness had been often seen coming from defendant’s house intoxicated. It appears that evidence of this fact was offered in rebuttal, was objected to by the defendant as not competent in rebuttal, and was admitted by the presiding judge. Whether he admitted it in rebuttal of the witness’s previous statement, or in the exercise of his discretion, the bill of exceptions fails to show. It was competent, in order to prove that the defendant was maintaining a common nuisance, to show that intoxicated persons, the witness included, were seen coming from the place kept by him. Such evidence has been repeatedly received in similar cases. Commonwealth v. Barnes, 138 Mass. 511. Commonwealth v. Mead, 140 Mass. 300. Commonwealth v. Leighton, 140 Mass. 305. Commonwealth v. O'Donnell, 143 Mass. 178. It was in the power of the court also to permit the Commonwealth to introduce competent evidence at any stage of the trial, even after it had once rested its case. Commonwealth v. Blair, 126 *57 Mass. 40. The order of proof at the trial was to be regulated by the presiding judge at his discretion, to the exercise of this no exception lies, and as the evidence admitted was competent, the entry must be

Exceptions overruled.