Commonwealth v. Hayes

At the trial of a criminal case, the testimony of a witness, identifying the defendant by his voice, whom the witness has heard speak only once before the occasion of the commission of the offence charged, which was after dark, is competent, and may be considered by the jury in connection with other evidence of identity.

Indictment, alleging that the defendant, on February 6, 1884, at Peabody, attempted to set fire to a building. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows: The government introduced evidence tending to prove that, between nine and ten o’clock in the evening of the day named in the indictment, a horse and buggy were driven up to the house of Sarah P. Farnham, in Peabody, and were turned round in the yard, and stopped opposite an open shed, the buggy being twenty-nine feet from the door of the kitchen of the house when stopped. The noise of the carriage attracted the attention of Mrs. Farnham, her husband, and of their servant, one Bohan. The servant testified that, while the horse and buggy were stopped as above stated, she saw a man come from the direction of the shed and get into the buggy, and that he soon drove off. Mrs. Farnham, her husband, and Bohan all testified that, after the man left, they went into the shed with a light, and found there a cartridge of Atlas powder, a fuse, and a bottle of kerosene. Mrs. Farnham, among other witnesses who testified to the identity of the man with the defendant, testified that she had known the defendant by sight, but had never heard him speak before said February 6 ; that on that day, about noon, the defendant drove into the yard in a sleigh, with another man, and stopped near the door of the house; that neither of them got out of the sleigh ; that she went to the door, and the defendant said, “ Does Mr. Farnham live here ? ” and she replied, “ Yes, but is not at home ; ” that then he said, “ Well, he lives here, don’t he ? ” and then he drove away; that that was all she ever heard him say; that the voice was coarse, gruff, and very ugly; that, on the same evening, while the buggy was stopped in her yard as above stated, she went to the door and said twice, “ Who is there ? ” and the person in the buggy replied to the second question only, “ What do you think ? ” and that she did not see the person in the buggy. The district attorney then asked her who it was that spoke. This question was objected to, on the ground that she had no such means of knowledge as would render an answer competent. The judge overruled the objection; and the witness answered, “I can say from the voice .that it was the same man that spoke to me at noon, — I say it was William Hayes.” The jury returned a verdict of guilty; and the defendant alleged exceptions.