1. Had there been no question as to the comprehension by this defendant of what a life insurance policy is, the evidence that he had made an application to a beneficiary organization of which he was a member for sick benefits for ten weeks during January, February, March and April, 1907, would not have been competent. The motive relied on by the Commonwealth was the intention to collect the amount of the policy on the life of the deceased, pledged to the defendant as security for a debt owed to him by the deceased. If the defendant in fact did not know what a life policy was and what rights he had as pledgee of the policy on the life of the deceased, the Commonwealth had not made out its case so far as the motive relied upon by it was concerned. We cannot say that there was error *466in allowing the district attorney to prove that this defendant, who seems to have been a foreigner, understood what a life insurance policy means. The burden is on the excepting party to show error. Jones v. Smith, 121 Mass. 15.
If the defendant had wished to have the jury instructed that the evidence was admissible only for the limited purpose for which it was competent, he should have asked for such an instruction. Howe v. Ray, 113 Mass. 88.
2. Two exceptions to the exclusion of evidence have been argued together. One of these was to the exclusion of evidence that on one occasion, late in the autumn previous to the murder, the deceased had been found in Daigle’s shop, late at night, dead drunk. The other exception was to the exclusion of evidence that the deceased was frequently in fights when he was intoxicated ; that he was frequently seen with his face all battered up in some contest he had had, and that he had been seen within a year before his death “with a swollen face, black eyes [and] battered face generally.”
On inquiry the defendant’s counsel disclaimed having evidence that the defendant knew of the character of the deceased. He also disclaimed offering this evidence to show that the killing here in question was done in self defense. The case therefore does not come within Commonwealth v. Tircinski, 189 Mass. 257.
The defendant’s argument in support of this exception is that this was evidence from which the jury could infer that the deceased came to his death by having got into a fight when drunk. The fact that a person’s habits or character are such that he would be apt to do an act is not competent evidence that he did the act. Nothing is better settled than that. Commonwealth v. Worcester, 3 Pick. 461. Ellis v. Short, 21 Pick. 142. Tenney v. Tuttle, 1 Allen, 185. Heland v. Lowell, 3 Allen, 407. McCarty v. Leary, 118 Mass. 509. Menard v. Boston & Maine Railroad, 150 Mass. 386. Geary v. Stevenson, 169 Mass. 23. Edwards v. Worcester, 172 Mass. 104. The King v. Fisher, [1910] 1 K. B. 149.
There is no difference between the usual case where evidence of this character is offered by the prosecution to prove that the defendant did the act he is charged with doing and the case at bar where evidence was offered by the defendant to prove that *467the deceased did the act in question and thereby to show that the defendant did not do it. Doing an act cannot be proved in either case by evidence that from the habits of the person in question he would be apt to do it.
3. The defendant passed the night in question at the house of his brother in law. There was evidence that as they were about to sit down to breakfast the next morning a neighbor came in and told them that Gailloux had been killed and that his body was at the undertaker’s; and that the brother in law said, “ Let us go and see him,” and the brother in law’s wife said, “ It is better to have breakfast and go to church; it is too late.” It also appeared that there was one church service at 8.30 and another at 10.30 A. M. and that the defendant attended the service at 8.30 A. M. The defendant took an exception to the exclusion of evidence that seats at the 8.30 service were free while the 10.30 service was “for those who had seats or pews,” On inquiry the defendant’s counsel stated that'he did not contend that this was given by him (Rivet) as a reason “ why Rivet did not go with the others to see the body immediately instead of going to church.” Under those circumstances the evidence was too remote.
We have read all the cases cited by the defendant and find nothing in them that helps him here.
4. The other exceptions were either expressly waived or were not argued, and for that reason we treat them as waived. We desire to add, however, that we have examined them and that we find no error.
The entry must be
JExeeption$ overruled.