effect of impeaching testimony fully protected rights of defendant. in the passageway itself." The landlord | 5. Criminal law 785(12) — Instruction on "would be liable for negligently leaving a coal scuttle in a dangerous position, but not for not removing one so placed by another person." Watkins v. Goodall, 138 Mass. 533, 536; Woods v. Naumkeag Steam Cotton Co., supra; O'Donoughue v. Moors, 208 Mass. 473, 94 N. E. 749; Bell v. Siegel, 242 Mass. 380, 136 N. E. 109, 25 A. L. R. 1261. Where evidence impeaching testimony of commonwealth's witnesses was introduced by latter evidence might discredit witnesses, it did commonwealth, instruction that, however much not have effect of independent evidence, and had no probative force with respect to truth of inconsistent statements made out of court, fully protected defendant's rights. 6. Criminal law 1144(15)-Presumed that instruction on effect of impeaching testimony was followed. Where jury were instructed that impeaching testimony did not have effect of independ [3] In the case at bar there is no evidence that the slippery condition of the steps was due to any defect in the structure, the material, or the quality of the stairs or stairway; there is no evidence the condition of them was caused by any positive, actual negligent act of the defendant or of his servent evidence, and had no probative force with ants; and there is no evidence of any assumed or contractual duty to keep or use reasonable care to keep the common passageways free from obstruction or filth. It follows that the verdict was directed rightly and that judgment should be entered for the defendant. Judgment for the defendant. COMMONWEALTH v. FESTO. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 26, 1925.) I. Criminal law 593-Denial of continuance because counsel was actually engaged in another criminal trial held without error. In murder prosecution, denial of continuance on ground that defendant's attorney was actually engaged in another criminal trial of less magnitude before another session of court, and had given notice thereof to district attorney, was without error. 2. Criminal law 593-Other conflicting engagements of counsel afford no right to continuance of particular case. Other conflicting engagements of counsel afford no right to continuance of any particular case, and since Rev. Laws, c. 173, § 81, was repealed by St. 1912, c. 542, matter is wholly in control of court. 3. Criminal law 1151-Motions for continuance commonly are for presiding judge alone. Motions for continuance commonly are for presiding judge alone. 4. Witnesses 379 (2) Evidence of inconsistent statements by commonwealth's witnesses as eyewitnesses of killing properly admitted by commonwealth to impeach them. respect to truth of witnesses' prior inconsistent statements, it must be presumed that instruction was followed. 7. Criminal law 783 (2)—That Impeaching witnesses disclosed identification of defendant and his silence not error, and instruction thereon fully protected rights. That testimony of impeaching witnesses for commonwealth disclosed identity of defendant soon after his arrest, and defendant remained silent, was not error, and instruction that testimony did not affect defendant, that he was not called on to say anything, and that no inference was to be drawn against him because he said nothing, fully protected his rights. 8. Criminal law 475-Physician's evidence as to victim's position at time of shooting properly admitted. Testimony of medical examiner that course of bullets through body of victim was such that he could not have been standing on level with person who fired shots, and that latter must have been at some elevation above him, was properly admitted as relating to matters outside range of common experience. 9. Homicide 188(2)-Evidence of victim's reputation as gunman, his disposition and criminal record, properly refused, there being no evidence of defendant's knowledge thereof. In murder prosecution, there was no error in excluding defendant's testimony to effect that victim was reputed to be a gunman of quarrelsome disposition and under indictment for robbery, there being no evidence that defendant had knowledge of that disposition. 10. Homicide 188(1)-When evidence as to victim's reputation competent stated. Evidence of reputation of victim as gunman, his quarrelsome disposition, and criminal record, is never competent, except to show that defendant acted under apprehension of great bodily harm. 11. Criminal law 412(2) Defendant's statements at time of arrest rightly admitted. Statements of defendant at time of arrest, not induced by threat or promise, were rightly admitted. Where eyewitnesses of killing, called as witnesses for commonwealth, testified that they could not identify accused, and just before killing victim uttered insulting or threatening remarks to accused, evidence was rightly admitted under G. L. c. 233, § 23, that soon after killing witnesses made statements inconsistent In murder prosecution, evidence held ample with their testimony. to require submission of case to jury. 12. Homicide 268-Evidence held ample for jury. (146 N.E.) 13. Criminal 'law 730(10) — Instruction to clients. Unreasonable delay in the adminisdisregard assistant district attorney's inad-tration of justice can be avoided only by vertent reference in argument to fact that leaving continuances of cases because of conaccused had not become witness in own de- flicting engagements of counsel solely to the fense held to protect defendant's rights. Instruction to jury to disregard assistant district attorney's inadvertent remarks, in argument, that defendant had not become witness in his own defense, held to protect rights of defendant fully. 14. Criminal law 720 (9) - Inconsistencies between witnesses' testimony and statements outside courtroom justified district attorney's comment thereon. Inconsistencies between testimony of cousins of victim as state witnesses and their statements outside courtroom touching subject of killing, their appearance and manner of testimony, justified argument of commonwealth that they were actuated by fear in testifying as they did. 15. Criminal law 7772-Judge not required to direct jury's attention to indecisive facts. A judge is not required to direct attention of jury to specific and in themselves indecisive facts. Exceptions from Superior Criminal Court, Suffolk County; G. A. Sanderson, Judge. Frank Festo was convicted of murder in the second degree, and he excepts. Exceptions overruled. D. T. O'Connell, of Boston, for the Com monwealth. W. R. Scharton, of Boston, for defendant. sound discretion of the court. The facts in [4] There was evidence tending directly or indirectly to show that the defendant entered an ice cream store in Boston on an August evening and shot and killed one Regione, as he was seated at a table with his brotherin-law, with two cousins who were sisters, and with another man, and then ran into the street, "covering the door with a gun," and soon after was arrested. The 'brotherin-law and cousins were called as witnesses by the district attorney. They testified that they did not know the other man sitting at the table. His identity was not established at the trial. Others, who were in the store and were called as witnesses, testified that they were unable to identify the person who did the shooting. One or more of the three relatives of Regione called as witnesses testified in whole or in part in substance that they could not identify the defendant as hav RUGG, C. J. This is an indictment charging been in the store on the night in ques ing the defendant with the crime of murder. The jury returned a verdict of guilty in the second degree. tion, and that, just before the fatal shots were fired, Regione uttered some insulting or threatening remarks to his assailant, rose from his chair, and made motions as if to draw a weapon, or in fact pulled out a revolver. Evidence was then rightly admitted to the effect that soon after the homicide these witnesses made statements quite differ [1-3] Before the jury was impaneled, the attorney for the defendant moved for a continuance on the ground that he was actually engaged in the trial of another criminal case of much less magnitude before another session of the superior court and had given due notice thereof to the district attorney. Oth-ent from their testimony given in court. er conflicting engagements of counsel afford According to some of these statements the no right to the continuance of any particular defendant was identified as the person who case. It was provided by R. L. c. 173, § 81, did the shooting, and Regione was unconthat an attorney at law actually engaged in scious of his presence and made no threat the trial of certain causes should not be re- or remark to him and did not reach for quired to proceed to the trial of other causes any weapon. Evidence of inconsistent stateexcept by special order of court. That stat-ments made at other times by these witnessute was repealed by St. 1912, c. 542. The es concerning the subject of their testimony matter now is wholly in the control of the was clearly admissible under G. L. c. 233, § court. It is manifest that this is the only way in which the trial of causes can proceed in an orderly and expeditious way under present conditions. There is no dearth of lawyers. There is congestion in the dockets of the superior court. No attorney can accept personal retainers for a larger number of cases than he can try as and when they are reached and expect courts to continue any case for his convenience or that of his 23. It was proper for the district attorney to introduce such evidence respecting witnesses called by him in a criminal prosecution. Commonwealth v. Moinehan, 140 Mass. 463, 5 N. E. 259. The circumstance that he expected that the witnesses might testify as they did afforded no ground for objection to the showing of previous inconsistent statements. Brooks v. Weeks, 121 Mass. 433. It well may have been thought necessary to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ed that a jury would not be aided by the technical learning of a medical examiner of experience on such a subject. Common [9, 10] There was no error in the exclusion of testimony proffered by the defendant to the effect that Regione was reputed to be a gunman, of a quarrelsome disposition and call these persons as witnesses as a part of the case for the Commonwealth. They were all present at the homicide. It is not necessary to narrate in detail either the testimony wealth v. Russ, 232 Mass. 58, 78, 122 N. E. given by each witness or the inconsistent 176; Commonwealth v. Reilly, 248 Mass. 1, statements made by each on previous occa- 8, 142 N. E. 915. sions admitted in evidence. All the impeaching testimony related to matters material to the issues being tried. Ryerson v. Abington, 102 Mass. 526, 530, 531. A careful examination of the entire record in this particular under indictment for robbery. This ruling demonstrates that no error was committed. [5, 6] Full and accurate instructions were given as to the scope and effect to be accorded to such impeaching testimony and the narrow limits to which it must be confined. The jury were plainly told that such evidence, however much it might discredit the witnesses, did not have the effect of independent evidence and had no probative force with respect to the truth of the inconsistent statements made out of court. The rights of the defendant were protected. It must be presumed that the instructions were followed. Manning v. Carberry, 172 Mass. 432, 52 N. E. 521; Donaldson v. New York, New Haven & Hartford Railroad, 188 Mass. 484, 486, 74 N. E. 915; Commonwealth v. Turner, 224 Mass. 229, 237, 112 N. E. 864; Bloustein v. Shindler, 235 Mass. 440, 126 N. E. 774; Southern Railway v. Gray, 241 U. S. 333, 337, 36 S. Ct. 558, 60 L. Ed. 1030. was rightly made on the ground that there was no evidence that the defendant had any knowledge of that disposition. Such evidence is never competent except to show that the defendant acted under apprehension of great bodily harm. Ignorance of that reputation cannot cause much apprehension. Commonwealth v. Tircinski, 189 Mass. 257, 75 N. E. 261, 2 L. R. A. (N. S.) 102, 4 Ann. Cas. 337; Commonwealth v. Rivet, 205 Mass. 464, 466, 91 N. E. 877. [11] The statements made by the defendant at the time of his arrest rightly were admitted in evidence. Even though the defendant was under arrest, his words to the officer, "You have got me in wrong," and in explanation of his possession of the pistol warm from its recent discharge, were competent, even though no preliminary warning was given. The statements do not appear to have been induced by any threat or promise. Commonwealth v. Sherman, 234 Mass. 7, 11, 124 N. E. 423; Commonwealth v. Gangi, 243 Mass. 341, 137 N. E. 643; Commonwealth v. Dascalakis, 243 Mass. 519, 522, 137 N. E. 879. [7] The circumstance that the impeaching testimony disclosed that identification of the defendant was made at the station house soon after his arrest by one of these witnesses, and that the defendant remained silent, discloses no error. The jury were at the time told by the judge that the testimony did not affect the defendant, that he was not called upon to say anything, and that no inference was to be drawn against him because he said nothing. The rights of the defendant thus were protected. Commonwealth v. Spiro-ant was seen backing out of the door of the poulos, 208 Mass. 71, 74, 94 N. E. 451. [8] The medical examiner testified to facts revealed at an autopsy performed by him on the body of Regione. It being the contention of the Commonwealth that the shots were fired at Regione while he was seated at the table, the medical examiner was permitted to testify that the course of the bullets through the body of the victim was such that he was sitting and could not have been standing on a level with the person who fired the shots, and that the latter must have been at some elevation above the person shot. He also was permitted to testify that the deceased could not have held a gun in his hand after the bullets entered his body. There was no error in admitting this testimony. It related to matters outside the range of common experience. It pertained to an exact knowledge of the anatomy and the vital organs of a human body and the course of [12] The request for a directed verdict rightly was denied. The fact of homicide through the firing of three shots from a revolver does not appear to have been disputed. There was direct evidence tending to show that immediately thereafter the defend store where the fatal shots had been fired, "covering the door with a gun," and then ran, but was soon caught by a man who saw him come out of the store, and was placed under arrest; that he then had in his pocket four bullets and a revolver, "real warm, hot," containing three empty shells and three cartridges; that he made contradictory and absurd statements in explanation of his possession of the revolver and of his presence in Boston; and that the bullet found in the body of Regione was like those in the revolver found on the defendant and had markings which would be made on a bullet discharged from such a revolver. There were other circumstances beside these salient facts, which might have been thought to point inferentially in the same direction. There was ample evidence to require the submission of the case to the jury. While it was more or less circumstantial, it well may (146 N.E.) [13] During his final argument, the assistant district attorney, referring to a rhetorical question put, as he said, in the argument of the attorney for the defendant: for conviction. Commonwealth v. Richmond, pearance and manner of testifying and all 207 Mass. 240, 246, 247, 93 N. E. 816, 20 the circumstances may have afforded warAnn. Cas. 1269. rant for reference to timidity or terror as a possible explanation. Quite apart from these factors, it cannot be said on this record, that there was any error of law in referring by way of argument to the possible element of fear. The charge of the presiding judge gave to the defendant in this respect every protection to which he was entitled. * "If a man who shot me knew I was a gunman, would he wait, would he wait? What would you have done, or I?" -proceeded in these words: “That is the interrogation. I will answer it for you, Mr. Foreman and gentlemen. If I relied on a theory of self-defense, I would have the courage to take the witness stand." The attorney for the defendant here interrupted, and the assistant district attorney then said: Numerous other objections were taken to the argument of the prosecuting officer. It is not necessary to go over them one by one. There is nothing in any one of them which shows that there was any error of law. [15] There was no error in the way in which the court dealt with the several re quests for instructions. So far as they were sound in law, they were given. Many of them mingled out particular bits of evidence "I will withdraw that. I did not intend for comment. But it is familiar law that a that." The court then said: "The jury will disregard that remark. It should not have been made." The argument then was resumed: ** The court will tell you that a moment ago, in the earnestness of my presentation, my tongue went too far, for which I apologize. I should not have said it. Of course, the defendant is not required to take the stand. I ought to know that, and I do know that, and I did not intend to make that reference to you. It is his right, as it would be your right, or my right, or any one's else not to take the stand, and the court will explain that feature of it to you. Do not give any weight to what I said on that feature." The judge in his charge, referring to this incident as having been an unintended remark, fully and as emphatically as was possible instructed the jury to disregard the remark, at the same time explaining with amplitude of care and in accordance with law the right of the defendant not to testify and the requirement that no inference be drawn against him from his failure to take the witness stand. This was in accordance with correct practice. It fully protected all the rights of the defendant. The case upon this point is covered by Commonwealth v. Richmond, 207 Mass. 240, 247-250, 93 N. E. 816, 20 Ann. Cas. 1269, and the authorities there collected and reviewed; Commonwealth v. Farmer, 218 Mass. 507, 514, 106 N. E. 150; Commonwealth v. Kaplan, 238 Mass. 250, 256, 130 N. E. 485. judge is not required to direct the attention of the jury to specific and in themselves indecisive facts. It is enough if all the issues are fairly presented for the consideration of the jury. The charge given in the case at bar was adequate and fair. It amply protected the rights of the defendant upon all points. So far as required by solicitous regard for justice, it guarded the defendant against improper arguments by the assistant district attorney and unwarranted inferences from evidence. All the exceptions have been examined. Many of them have not been argued. Those which are worthy of detailed consideration have been discussed in this opinion. The record discloses nothing to indicate that the defendant did not have a fair trial. Commonwealth v. Dyer, 243 Mass. 472, 508, 509, 138 N. E. 296. Exceptions overruled. BUONO v. CODY. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 27, 1925.) I. Appeal and error 262(2)—Assignment of error as to procedure not reviewed, where no exception taken thereto. Assignment of error that judge erred in entering verdict for defendant, on leave reserved under G. L. c. 231, § 120, after verdict was returned for plaintiff, cannot be reviewed, where no exception was taken to such procedure. 2. Appeal and error [14] The suggestion in the argument in behalf of the Commonwealth that the cousins 274(4)-Plaintiff's exof Regione were actuated by fear in testifyception to allowance of motion to enter vering as they did presents no reversible error. dict for defendant presents question whethThe inconsistencies between their statements er evidence supported verdict for plaintiff. on the witness stand and their statements Where, after verdict for plaintiff, defendoutside the court room touching the same ant's motion to effect that verdict be entered subject justified some comment. Their ap- for him in accordance with leave reserved For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes was allowed, and plaintiff excepted, question Action of contract by Joseph J. Buono is presented whether evidence, in aspect most against James F. Cody (alias), with trustee favorable to plaintiff's contentions, supported process. Verdict for plaintiff. After verdict, verdict. judge entered verdict for defendant, and Exceptions sustained. Judgment for plaintiff on verdict. 3. Appeal and error 1003-Weight of evi- plaintiff excepts. dence was for jury. Weight of evidence was entirely' for jury, and is of no consequence on exceptions. 4. Brokers 54-When broker entitled to commission for sale stated. If by contract broker was to have commission if he sold property, he was not obliged to show that actual transfer was made, but his duty was done when he produced customer able, ready, and willing to pay owner's price, and whom defendant accepted. 5. Brokers 54-Defendant's assent to terms submitted by broker obviated necessity of producing cash customer. Where terms of offer procured by broker were approved by defendant, who knew name of customer and inferentially accepted him, it was not necessary for broker to produce customer able, ready, and willing to pay cash. 6. Brokers 52-Broker held not obliged to show contract binding on his customer. Where broker submitted terms of offer procured by him, which were inferentially accepted by defendant, broker was not obliged to show he had made contract binding on customer. 7. Brokers 88(3)—Testimony of customer that he was ready and able to buy raised question of fact. Testimony of customer produced by broker that he was ready, able, and willing to buy property on terms stated in agreement with broker, and submitted to and accepted by defendant, raised question of fact. 8. Brokers 88 (2)-Whether broker treated defendant as owner of property was fact question. Broker's evidence of defendant's assertion that he owned the property made fact question as to whether broker treated with him on that footing. 9. Evidence 383 (7)-Reference in broker's agreement with customer to defendant's agency for bank held evidentiary only. Recital in written agreement between broker and his customer that, if broker, as agent, was not satisfied with all details as arranged with defendant, representing bank, deposit would be returned, held not admission, binding on broker, that he knew defendant was agent; it being only evidentiary. 10. Brokers 88(2)-Broker held not to know that defendant was agent only for sale of premises. Evidence held not to show as matter of law that broker was bound to know that defendant was agent for sale of premises only. Exceptions from Superior Court, Suffolk County; Franklin T. Hammond, Judge. J. C. Coughlin, of Boston, for plaintiff. RUGG, C. J. This is an action of contract to recover a commission for procuring a purchaser for real estate. At the close of the evidence the defendant moved that the jury be directed to return a verdict for the defendant. No action was taken on that motion, but the case was submitted to the jury with appropriate instructions. After a verdict had been returned for the plaintiff, but before it was recorded, the judge reserved leave with the assent of the jury to enter a verdict for the defendant if, upon the exceptions taken or the questions of law reserved, the trial court or the Supreme Judicial Court should decide that a verdict for the defendant ought to have been entered. [1] It has been argued that this procedure was unwarranted because it does not appear that exception had been alleged to any ruling or direction, or that any question of law had been reserved in the course of the trial, and that hence the conditions prerequisite according to G. L. c. 231, § 120, for such action by the judge, did not exist. That question is not open on this record because no exception was taken to this procedure. [2] Subsequently the judge allowed a motion of the defendant to the effect that a verdict be entered in his favor in accordance with leave reserved. The plaintiff excepted. The question is thus presented whether there was evidence in its aspect most favorable to his contentions to support a verdict for the plaintiff. Exception to the allowance of this motion without further specification was sufficient to raise this question. The bill of exceptions is in proper form to present that question. There was testimony tending to show that the defendant came to the office of the plaintiff, a real estate broker, with a list of property which he wanted to sell, and that inquiry was made about a ten-apartment house; that the defendant said that the price was $54,000; that there was a mortgage for $44,000 on it, and that he, the defendant, was owner of the building. The plaintiff said, "Then I am entitled to full commission in case I should sell this building?" The defendant replied, "Absolutely." The plaintiff took a prospective customer to see the property several times. He then telephoned to the defendant that his prospective customer was interested and was ready to pay a deposit, and inquired if it was all right to take a deposit of $500. The defendant said, "Go ahead." The plaintiff then drew a con |