Jeffries, 7 Allen, 548, 565, 566, 83 Am. Dec. 712: "It is doubtless true that in a large class of cases the poverty or pecuniary embarrassments of a party accused of crime cannot be shown as substantive evidence of his guilt. The reason for the exclusion of such evidence is that in those cases there is no certain or known connection between the facts offered to be proved and the conclusion which is sought to be established by it. To render evidence of collateral facts competent there must be some natural, necessary, or logical connection between them and the inference or result which they are designed to establish. It does not follow because a man is destitute that he will steal, or that when embarrassed with debt and incapable of meeting his engagements he will commit forgery." Mere poverty, considered apart from all other facts tending to connect the accused with a crime, never can tend to show criminal intent or criminal motive. Upon this record, however, it is perfectly clear that the evidence, the substance of which we have recited, was offered and admitted upon an entirely different ground, namely, to show that at the time of the murder there was in the house in which the murder was committed a certain amount of money consisting mostly of bank bills, and that shortly after the murder this money was in the possession of the defendant, or, to use the language of the defendant's counsel, "to show that money was missing from the house and to argue, if it is possible, that the defendant had that money."

Such evidence unexplained would tend to show that the defendant was in the house at the time of the murder. It was not necessary that the bills should be identified by earmarks. Commonwealth v. O'Neil, 169 Mass. 394, 48 N. E. 134. One of the steps in such a process might be to show that before the murder the defendant was short of money and after the murder he was not short, that is, to show a marked change in the amount of money in his possession. This the commonwealth undertook to do, and all the evidence which was admitted upon this branch of the case, including the defendant's statements as to his lack of money, his losses, his financial transactions both before and after the murder, and his possession of money, were all admissible upon this step. It is true that all this evidence did not tend to connect the defendant with the crime with which he was charged, unless there was evidence tending to show that at the time of the murder money was taken from the house. The court were assured by the district attorney that he expected to show that such was the fact. Evidence must go in by piecemeal, and evidence having a tendency to prove a proposition is not inadmissible simply because it does not wholly prove the proposition. It is enough if in connection with other evidence it helps a little. The commonwealth in this part of its case sought to prove two things, namely,

that after the murder, the defendant had more money than before, and that he got some of it from the house. Subject to the direction of the court the prosecuting officer could begin with either proposition he might see fit, and it was within the discretion of the court to permit him to introduce the evidence tending to prove the first before passing to the evidence tending to prove the second. Relying upon his assurance as to his ability to prove the second, the court permitted him to put in the evidence tending to prove the first.

It is argued by the defendant that so far as appears from the bill of exceptions there was no evidence whatever tending to prove the second proposition, namely, that any money was missing from the house; but we do not so interpret the bill of exceptions. Near the end of the bill is the statement that it presents all the testimony material to the questions raised by the bill, and that "no question was made, but that there was evidence for the jury on all the issues submitted to them." In the charge to the jury the court said: "The claim of the commonwealth is that he [the defendant] might well have been there; that he carried from that house upon his knife and his clothing stains of the blood of his victim; that he stole money from her pocketbook. On

the other hand, it is claimed by the prisoner that he was not on that day in the Page house at all, and all the circumstances claimed to incriminate him which I have mentioned are denied or claimed to have been fully accounted for by him." It thus appears that one of the issues submitted to the jury was "whether he stole money from her pocketbook," and the fair interpretation of the bill is that on that issue there was evidence in support of the claim of the commonwealth. But whether or not there was such evidence is not material to the inquiry before us. Even if there was no such evidence upon the second proposition, or if it was insufficient, the most that can be said is that the evidence introduced to prove the first became thereby immaterial; and if, at the close of the whole evidence, the defendant had requested the court to exclude from the consideration of the jury the portion relating to the first, upon the ground that there was no sufficient evidence of the second, and the court had refused to grant the request, there would have been error. But no such action was taken, the defendant preferring apparently to stand upon his original exceptions. It is further suggested that at the time the district attorney made his opening he had no reason to suppose that he could show that money had been taken from the house; but there is nothing to show that the statement was not made in good faith, and the trial court, at any rate, committed no error in law in relying upon it. We are of opinion that no error was committed in the

action of the court with reference to the opening of the district attorney or in the admission of the evidence.

4. It was contended by the defendant that the broken pieces of knife found in his coat pocket were not admissible. The exception to their admission was taken in various forms, but in substance the ground of the exceptions was that the pieces were obtained by an abuse of legal process, and their admission, therefore, was an infringement of his constitutional rights, especially those under the fourth, fifth and fourteenth amendments to the federal Constitution, and the twelfth and fourteenth articles of the state Declaration of Rights. The question of the manner in which the articles were obtained was tried before the court in the absence of the jury at the request of the defendant. The evidence is given in great detail in the bill of exceptions. The finding of the court is as follows: "The court finds that one of the purposes of taking out the search warrant alluded to was to search for evidence to be used in this case against the prisoner if there should subsequently be a trial, but that this was not the sole purpose, and that the warrant was taken out in good faith, under an honest belief that the facts stated in the complaint were true, and that one purpose was to search for the article therein mentioned, but that no service was made of this warrant, and that nothing was actually done under it; that officers went with it to the door of the house where Tucker resided, and stated to his mother, at the outside door of the house, that they had this search warrant to search for the article named therein, and offered to let her examine the warrant; that she declined to take it or examine it, and invited the officers to make all the search they desired, saying that she knew her son to be innocent, and thereupon the officers made search, not upon the warrant, but in consequence of her invitation, and in such search found the articles in question; that the warrant bears a return that no service thereof has been made, which we find to be the fact. The court is also of opinion, if this is material and competent, that if the prisoner's mother had not invited the officers to make the search, they would still have made it under and by virtue of said warrant."

It is strongly argued by the defendant that this finding is not warranted by the evidence, and that the court should have found that as far as respected the graphaphone, the only article named in the warrant, the warrant was not taken out in good faith; and that in entering the house and in searching therein the officers acted solely under their warrant, without any invitation or consent on the part of the defendant's mother. We have carefully examined the evidence bearing upon this matter, and are of opinion that it fully justifies the finding of the court. It also is to be noted in this connection that while the

court in the first instance had to pass upon these facts, still it recognized that the defendant had the right also to the decision of the jury upon them, but the defendant did not desire to go to the jury upon them. We think, therefore, that the finding that neither in entering the house nor in making the search did the officers proceed under the search warrant, but in consequence of and under the invitation of the mother, must stand. It is therefore unnecessary to consider the argument of the defendant which is based upon the assumption that the articles were obtained by an abuse of legal process.

It is further argued that the defendant did not consent and that his mother could not consent for him. But that is immaterial. The officers did not act under the warrant, but under the invitation of the mother, and even if, not acting under the warrant, they were trespassers as against the defendant, still this was no abuse of legal process, but simply an individual trespass, and that is not sufficient to exclude the evidence. They might have been liable for the trespass, but the evidence thereby obtained was nevertheless admissible. Commonwealth v. Tibbetts, 157 Mass. 519, 32 N. E. 910; Commonwealth v. Hurley, 158 Mass. 159, 33 N. E. 342; Commonwealth v. Byrnes, 158 Mass. 172, 33 N. E. 343; Commonwealth v. Brelsford, 161 Mass. 61, 36 N. E. 677; Commonwealth v Acton, 165 Mass. 11, 42 N. E. 329; Commonwealth v. Smith, 166 Mass. 370, 44 N. E. 503.

5. Upon the question whether the written address "J. L. Morton, Charlestown, Mass.," which was found in the Page house shortly after the murder, was in the handwriting of the defendant, the commonwealth offered as standards for comparison certain "sales slips" which it contended were in the handwriting of the defendant. The defendant objected to the use of these slips as standards. As to the authenticity of these standards the commonwealth made an offer of proof, and to expedite the trial it was agreed by both parties that "all statements of fact [therein] included, together with

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the offered statements of witnesses therein referred to, were to be considered and taken as facts established by the evidence," the "defendant contending that such facts were not competent to render the sales slips admissible as standards of the defendant's handwriting." Upon hearing the offer of proof, "the court ruled as a preliminary matter that the agreed statement of facts contained in the * offer of proof made the sales slips competent as standards of comparison, but that the jury were to determine from the agreed statement of facts whether such slips were in the handwriting of the defendant." The defendant excepted. We understand the action of the court to be a finding by the court as a preliminary question of fact that upon the agreed statement of facts contained in the offer the slips were in the handwriting of

the defendant, and might be used as standards, but that the question whether they were in the defendant's handwriting should be finally left to the jury.

The first objection of the defendant to this action is that the facts contained in the offer were not sufficient to justify the use of the slips as standards. The defendant contends that the handwriting of a standard must be proved by direct evidence of the signature, "or by some equivalent evidence," and that the only way in which this can be done is either by the testimony of the witness who saw the defendant write it, or by the defendant's admission that he wrote it. Even if the defendant's contention were correct as to the method of proof, we are of opinion that, upon the facts contained in the offer, the trial court may properly have found that the defendant had admitted the signature upon some of the slips at least to be his. The facts show that it was his duty as salesman, in the instance of every sale, to , make a memorandum of the articles sold, their kind and price (using blank forms, called sales slips, furnished for that purpose), together with his name or initials, and to transmit these slips so filled out to a shipping clerk. Many of the slips were delivered to the shipping clerk by the defendant in person. All had upon them the name of "Tucker." As to those which were handed in personally by the defendant, the court might well have found that by that act unexplained the defendant admitted them to be his own handwriting. It was his duty to make them out as memoranda of his work, and to hand them in as such, and the handing in of such a memorandum with his own name upon it would justify a finding, in the absence of any evidence to the contrary, that he admitted the writing to be his. Commonwealth v. Coe, 115 Mass. 481.

But we do not rest upon this narrow ground for we are of opinion that the defendant's contention as to the method of proof is not correct. There is a considerable diversity in the various courts as to the use of standards of handwriting and the degree and kind of proof required to establish a piece of writing as a standard. See 15 Am. & Eng. Ency. of Law (2d Ed.) p. 252, et seq., for a collection of the authorities. But whatever may be the rule elsewhere, it has been said by this court that here the standard shall be proved by "direct proof of the signature or other equivalent evidence," and we understand that to be the true statement of our rule. Commonwealth v. Eastman, 1 Cush. 189, 48 Am. Dec. 596; Martin v. Maguire, 7 Gray, 177; Bacon v. Williams, 13 Gray, 525. An examination of the cases in which this language is used will show, however, that the distinction declared is between evidence based solely upon an inspection of the paper, as for instance that given by an expert or one acquainted with the handwriting of the party charged and who testifies

as to the genuineness solely by comparison with another standard or with an exemplar in his own mind, on the one hand, and on the other hand, evidence of a different kind having a tendency independent of any opinion as to handwriting to show that the paper was written by the party charged. In other words, you cannot prove a standard by the opinion of witnesses as to the handwriting of the person charged, whether the opinion be based upon comparison with other writings or upon a knowledge of the party's handwriting obtained in any other way. The evidence to prove the standard must be entirely independent of opinion as to handwriting. The first kind of evidence is not sufficient, but the second may be, even if it contain no statement of a witness who saw the standard written, or any admission by the party charged. There is no reason why evidence which, independent of any opinion upon the handwriting as such, justifies a finding beyond a reasonable doubt that the proposed standard was written by the defendant, should not be regarded as the equiv alent of evidence given by a witness who testifies that he saw the paper written. And that is so even if the evidence of the genuineness of the writing be partially or even wholly circumstantial. Indeed, it is only commonplace to remark that circumstantial evidence is frequently more satisfactory than direct. By reason of mistake, bias, or dishonesty, the testimony of a witness that he saw the standard written may be utterly unreliable, while a compacted mass of circumstantial evidence, the existence of each circumstance being satisfactorily proved and the proof of each being confirmed by the proof of the other, and all without an exception leading by mutual support to but one conclusion, may be impregnable. In the case before us the facts contained in the offer of proof were sufficient to warrant a finding beyond a reasonable doubt that the sales slips were written by the defendant, and if the writing of these slips had been a crime and the defendant had been on trial for it, they would have amply justified his conviction of the offense. To say that such evidence is not the equivalent of the evidence of a witness, who testifies that he saw the standard written, is to fly in the face of common experience, and to ignore the basis upon which rest the leading principles of our system of evidence. The court made no error in admitting these slips as standards.

6. The court, having admitted the slips as standards, in its closing charge submitted to the jury the question whether they were written by the defendant, instructing them that "unless the commonwealth shows by strong, undoubted proof, that is, by proof beyond a reasonable doubt, that the writing upon these slips was actually made by the defendant, and if [the jury] do not so find. they are not to be used at all, and the jury

should wholly disregard them and all the great body of evidence which they have heard about them." No exception was taken by the defendant to these instructions, but it is objected by him that the decision of the court that the slips were written by the defendant was final and that the submission of that question to the jury was error. In support of this position the defendant has cited some authorities from other jurisdictions which seem to support his contention; but here, as in other branches of the law, as to the admission, proof, and use of standards there is much conflict in the authorities (see for instance Rowell v. Fuller, 59 Vt. 688, 10 Atl. 853, State v. Hastings, 53 N. H. 460), and it would serve no useful purpose to review them here.

The law with reference to the decision of preliminary questions concerning the admissibility of evidence, especially in criminal cases, has been quite recently considered by this court in Commonwealth v. Reagan, 175 Mass. 335, 56 N. E. 577, 78 Am. St. Rep. 496, and we need only refer to that case and the cases therein cited to show what the practice is in this state. The practice as to confessions is thus stated by Morton, C. J., in Commonwealth v. Preece, 140 Mass. 276, 5 N. E. 494: "When a confession is offered in evidence, the question whether it is voluntary is to be decided primarily by the presiding justice. If he is satisfied that it is voluntary, it is admissible; otherwise, it should be excluded. When there is conflicting testimony, the humane practice in this commonwealth is for the judge, if he decides that it is admissible, to instruct the jury that they may consider all the evidence; and that they should exclude the confession if, upon the whole evidence in the case, they are satisfied that it was not the voluntary act of the defendant." In Commonwealth v. Reagan, ubi supra, the same doctrine was said to be applicable to the question of the competency of a witness to understand the nature of an oath. In these and similar questions the defendant has the right to the decision of the court upon the admissibility of the evidence, and if the decision involves a finding of fact he has a right to such finding. But if in a criminal case the decision is against the defendant, he has another chance before the jury, so far as it depends upon a question of fact. In passing upon the question of the authenticity of the proposed standards in the first instance, and then submitting any question of fact involved for the final determination of the jury, the court followed the uniform and long continued practice of this commonwealth.

In addition to the authorities cited from other jurisdictions, the defendant, in support of his contention that the decision of the court is final in the sense that it cannot be submitted afterward to the jury, cites Commonwealth v. Coe, 115 Mass. 481, 485; Costelo v. Crowell, 139 Mass. 588, 590, 2 N. E. 698.

But it is manifest that in each of those cases where the court say or imply that the decision of the court is final, unless error in law is shown, the meaning simply is that it is final so far as respects the power of this court to revise it on questions of fact, and the language has no reference to the powers or rights of the jury. In Commonwealth v. Coe, Wells, J., uses the following language, which not only shows the sense in which the decision of the court is said to be final, but also hints at the practice of considering the decision of the court as only preliminary: "Upon the question whether a given writing or written word is sufficiently proved to have been written by the defendant to allow it to be submitted to the jury as a standard of comparison, the judge at the trial must pass in the first instance. So far as his decision is of a question of fact merely, it must be final if there is any proper evidence to support it. As in all questions of that nature, exceptions to the ruling at the trial will be sustained only when they show clearly that there was some erroneous application of the principles of law to the facts of the case, or that the evidence was admitted without proper proof of the qualifications requisite for its competency." In other words, the finding of the trial court, so far as respects facts, cannot be revised by this court provided the finding is justified by the evidence. These cases adjudicate nothing as to the power or duty of the trial court, after admitting the evidence, to submit the question to the jury under proper instructions. In dismissing this branch of the case, it may be remarked that even if the court's decision was final in the sense urged by the defendant, it is difficult to see how the defendant in this case could be harmed by having another chance given to him by the submission of the question to the jury.

7. The exception to the refusal of the court to allow the defendant to interrogate the witness Carvalho as to certain mistakes which he had made in testifying in other cases, as well as to the exception to the action of the court in permitting the same witnesses to use certain photographs as "chalks," must be overruled. These were matters within the discretion of the court. This is too clear to require further comment or the citation of authorities. No error therefore appears in these rulings.

8. It does not distinctly appear that the defendant took any exception to the admission of the addresses upon the postal card taken from the clothing of the defendant at the time of his arrest. The bill of exceptions recites only that "they were introduced in evidence subject to the defendant's objection." As both parties, however, have argued the question upon the assumption that the defendant did except, we have assumed that the word "objection" inadvertently appears instead of "exception." The commonwealth contends that the written words "Morton &

Co." and "Charlestown," which there was testimony to show were written by the defendant, were competent, because of the inferences to be drawn from the close resemblance of the name and address to that which appeared upon the writing found near the body of the deceased and alleged to have been written shortly after the murder had been committed, and may have had a tendency to establish a connection through an association of ideas between the defendant and the J. L. Morton address. The bearing of the evidence, it is true, is very slight, but its weight was for the jury. We cannot say that its admission was erroneous.

9. As to the admission of the photograph of the corsets of the deceased, it is sufficient to say that, so far as respects the question whether the corsets were in the same condition at the time the photograph was taken as at the time of the murder, with the exception of the change naturally arising from handling, and whether such change would have any substantial or material effect upon the use of the photograph as evidence, were in the first instance for the court. Blair v. Pelham, 118 Mass. 420. The evidence justified a finding for the commonwealth upon both of these questions, and the court having admitted the photograph, it is to be taken that it so found. And it was within the discretion of the court to admit the photograph to show the condition of the corsets at the time the photographs were taken, although at the time of the trial, which was nearly six months later, the corsets themselves were in court. The photograph was a representation of a part of the history of the condition of the corsets from the time of the murder to the time of the trial, and may have been of assistance to the jury in the consideration of questions relating to the substance and fabric of the material of which such corsets were made and of the possibility of changes therein where the cut was made, as well as for the purpose of comparing the photograph with the corsets as the jury saw them.

10. There is nothing in the exception to the hypothetical question put to the witness Harris. "Where expert testimony is offered by way of answers to hypothetical questions, much must be left to the discretion of the presiding justice. The jury are instructed to disregard the answers, unless they find the facts as assumed in the question; but as it cannot be known in advance what may be the ultimate decision of the jury as to the facts in dispute, the usual practice is to allow counsel, in framing a hypothetical question, to assume the existence of such facts and conditions as the jury may have a right to find upon the evidence as it then is, or as there may be fair reason to suppose it may thereafter appear to be, and in determining whether a hypothetical question shall be allowed the judge in many cases must rely to a great extent upon the good faith of counsel

in their statements as to what they expect the evidence will be." Anderson v. Albertstamm, 176 Mass. 87, 91, 57 N. E. 215. Under this rule of practice the question was properly admitted.

11. The exception to the use by Dr. Harris of a photograph of the pieces of the broken knife blade put together is untenable. The sole objection of the defendant was that the original pieces were already in evidence, but this did not prevent the use of the photograph as a chalk. It might be so used just as the witness in illustration of his testimony might have drawn upon a blackboard a sketch of the pieces if in the opinion of the court such an illustration might be of assistance to the jury.

12. One of the questions claimed at the trial of the defendant to be material was whether the azygous vein of the victim was severed by the stab in the back, the commonwealth contending that it was and the defendant contending to the contrary; and, as is usual upon such occasions, the expert witnesses divided on that question, each taking the view favorable to the side by which he was called. Dr. Pease, a medical expert called by the defendant, on direct examination testified at first, in substance that, while it was barely possible that the vein was thus severed, yet it was highly improbable, and finally said that to him it seemed impossible. He was then asked whether he had made any experiments for the purpose of "ascertaining that opinion," and in reply, he said that he had. To this question and answer no objection was made. The defendant then asked him what experiments he had made. Upon objection by the commonwealth this question was excluded, and the defendant excepted. The following question was then put to him by the defendant: "Let me ask you, in order to make the matter clear, whether or not you have made experiments upon a body, approximating the size of the body of the victim in this case described to you?" To which he answered "I have." Whereupon the Attorney General objected, because it was immaterial whether he had or not, to which the defendant's counsel replied: "I am trying, in order to save whatever rights we have, to make the facts conform as closely as they can to this case. I am not intending to ask him any further. I understand your honors having ruled it out." The Attorney General then said: "Well, it was ruled out, as I understand your honors, because the experiment is absolutely immaterial and uninstructive, and therefore whether he has or not made an experiment is incompetent and immaterial," and then the court ordered the evidence stricken out.

We have stated this matter in detail, because the defendant has argued that the witness was not allowed to testify that he had made an experiment upon a dead body approximating in size that of the deceased.