While researching distant cousin Andrew J Dunham, I found
this rather interesting court record. Andrew seems to have been
a slippery fellow on the witness stand. I can picture this in my
mind's eye as "Law & Order:Abington" episode.
Ok, everyone, say it with me now:
"Cha-CHUNG!"
"Commonwealth Vs. Thomas F. Donahoe.
Plymouth. Oct. 17. —23, 1882. Endicott, Lord & C. Allen, JJ., absent.
Under the St. of 1869, c. 425, a party producing a witness may contradict
his testimony upon any matter material to the issue, by showing that he
has made at other times statements inconsistent with his present testimony,
having first mentioned to the witness the circumstances of the statement
sufficient to designate the occasion on which it was made.
Indictment under the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining a
common nuisance, to wit, a certain tenement in Abington, used for the
illegal sale and illegal keeping of intoxicating liquors, on May 1, 1881,
and on divers other days and times between that day and October 26, 1881.
Trial in the Superior Court, at October term 1881, before Brigham, C. J.,
who allowed a bill of exceptions, in substance as follows:
The government called one Andrew J. Dunham as a witness, who testified
that he did not think he had bought any intoxicating liquor at the defendant's
place between May 1 and October 1, 1881.
The government then asked him if he did not tell one Nash, (an officer, who
had previously testified in behalf of the government,) "a week ago last Monday,"
that he had bought rum or whiskey there since May 1; to which the witness
replied that he told him something to that effect, but that he could not tell
whether it was before or since that date. Upon the question being repeated,
the witness denied that he had made such statement to Nash.
The government then recalled Nash, and asked him, "if, a week ago last Monday
in the cars, Andrew J. Dunham said anything about purchasing whiskey or rum
since May 1, and prior to October 21, 1881." To this question the defendant
objected. The objection was overruled, and the witness replied that Dunham
stated in the cars that he had bought rum or whiskey of the defendant, that he
could not tell what date it was, but it was since May 1, and the last purchase was
less than a month ago.
Dunham was then asked by the government, " if a week ago last Monday he did
not tell Nash in the cars that the defendant had offered him money, if he would
not testify against him in this case." To which he replied, that he did not tell
Nash, a week ago last Monday in the cars, that the defendant had offered him
money; "I told him that he would rather give me back some money which I
claimed belonged to me, than havr me testify against him." On cross-
examination, he testified, -I did not tell Nash that the defendant had paid me
a cent. He had not offered to pay me a cent."
The government then recalled Nash, and asked him, "if, a week ago last Monday
in the cars, Andrew J. Dunham said anything to him about the defendant
having offered to pay Dunham money, if he would not testify against the
defendant in this case." To this question the defendant objected. The
objection was overruled, and the witness replied that "Dunham said the
defendant had offered to give back money he had got of his, if he would
not testify against him."
The jury returned a verdict of guilty; and the defendant alleged exceptions.
W. H. Osborne, for the defendant.
C. H. Barrows, Assistant Attorney General, for the Commonwealth.
Morton, C. J. Under our practice, a party producing a witness has the right to
contradict his testimony upon any matter material to the issue, by showing
that he has made at other times statements inconsistent with his present
testimony, having first mentioned to the witness the circumstances of the
statement sufficient to designate the occasion on which it was made.
St. 1869, c. 425. Pub. Sts. c. 169, § 22. Ryerson v. Abington. 102 Mass. 526.
Force v. Martin, 122 Mass. 5.
In the case at bar, one Dunham, called by the government, testified that he
did not think he had bought any liquor at the defendant's place between May
1 and October 1, 1881. This was material testimony, and the government had
the right to contradict it, by showing that he had told Nash that he had
bought liquor there between May and October, the prosecuting officer having
first laid the foundation for the evidence by mentioning to the witness the
occasion on which the statement was made.
So the testimony of Dunham, that the defendant had not offered to pay him
money, if he would not testify against the defendant, was material; and it was
competent for the government, upon the same conditions, to prove that
Dunham had made contradictory statements.
Both questions put by the government to Nash were therefore competent.
Exceptions overruled."
As to whether Andrew faced any penalties, I've yet to find any record.
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