The defendants’ motion, made at the argument in this court, to strike from the files and record the brief of the Commonwealth, cannot be allowed. But the statement of the case contained in that brief was not a proper one. It was the view of the district attorney as to the case developed at the trial rather than a statement of the case presented by the bill of exceptions. That bill of course stated only such part of the proceedings had at the trial as were needed to present properly to us the questions of law which were intended to be brought up. The concise statement of the case with which it is required by Rule 2 for the regulation of practice before the full court that each brief shall begin, means a concise statement of the case shown by the bill of exceptions. Nothing more should be included; and the brief of the Commonwealth should not have gone further. Accordingly in passing upon the case we have wholly disregarded the statement contained in that brief.
The first contention of the defendants is that testimony of the statements of Walter Jacobson made out of court shortly after the alleged crime had been committed should not have been admitted. *90This contention cannot be supported. It was claimed by the defendants that the witness was testifying under the influence of a policeman, and that before coming under this influence the witness had not observed the fact, the identity of a quilt, to which he testified. To meet this claim of the defendants, the judge might allow it to be shown that immediately after seeing the quilt and before meeting the policeman the witness had made the same statements to which he now testified. The subject was fully discussed by Hammond, J., in Commonwealth v. Tucker, 189 Mass. 457, 479, et seq., and we need add nothing to what was there said.
There was no exception to the judge’s preliminary examination of the witness Accusia Cusumano outside of the hearing of the jury. The examination was made at the request of the defendants’ counsel, and there is nothing to show that it was not made in the manner that they desired, or that the defendants were in any way prejudiced by the method adopted.
We find no error in the action of the judge in allowing this witness to testify. It was for him to decide upon her competency; his decision will not be overruled unless some error is shown; and that is not the case here. Commonwealth v. Mullins, 2 Allen, 295. Commonwealth v. Lynes, 142 Mass. 577. Commonwealth v. Robinson, 165 Mass. 426., Commonwealth v. Reagan, 175 Mass. 335. Commonwealth v. Ramage, 177 Mass. 349.
The other exceptions taken by the defendants were expressly waived. As this is a capital case, we have examined them, and are satisfied that none of them could have been sustained.
Exceptions overruled.