Commonwealth v. BaxterCommonwealth v. Baxter
- Reporters:
- , ,
- Before:
- Crosby
On a complaint issued from the Municipal Court of the West Boxbury District of the City of Boston, under
One Davies, not a member of the community where the complainant resided, was employed by the defendant as an investigator. He testified that he had interviewed five named persons, and that he had learned upon inquiry, and knew of, the complainant’s general reputation with respect to truth. and veracity. He was asked, “What did you find her reputation in this respect to be?” The question was excluded by the trial judge subject to the defendant’s exception. The defendant offered to show that if permitted to answer the witness would testify that the reputation of the complainant with respect to truth and veracity was bad. This exception cannot be sustained. The complainant’s reputation for truth and veracity could be shown only by evidence of her general reputation in the community as disclosed by the common speech of her neighbors and members of the community. Commonwealth v. Lawler, 12 Allen, 585, 586. Commonwealth v. Porter, 237 Mass. 1, 4. Clark v. Eastern Massachusetts Street Railway, 254 Mass. 441, 443. It cannot be shown by what the impeaching witness “may have heard others say who numerically may be few and insignificant,” F. W. Stock & Sons v. Dellapenna, 217 Mass. 503, 506, nor by what the impeaching witness may have heard said on two occasions which he specifies, Commonwealth v. Rogers, 136 *593Mass. 158. A stranger sent by a party to the neighborhood of the complainant to investigate her character is not permitted to testify as to the result of his inquiries. Commonwealth v. Hunt, 243 Mass. 286, 287. Douglass v. Tousey, 2 Wend. 352, 354. People v. Loris, 131 App. Div. (N. Y.) 127, 129. The testimony sought to be introduced in the case at bar was the result of the witness’s inquiries of five individuals. The witness not being a member of the community had no knowledge of the reputation of the complainant other than what he learned from these individuals. So far as the witness was concerned his knowledge rested on pure hearsay. It was said in Walker v. Moors, 122 Mass. 501, at page 504: “The distinction between reputation and hearsay evidence is sometimes a difficult practical question, and is not always kept clearly in mind in the introduction of testimony upon a trial. General reputation is a fact. The mere declaration of one or many is hearsay. It does not require a multitude of witnesses to prove the fact that there is a general reputation upon a particular subject. The question is a simple one of fact, Is there a general reputation? Has the subject been so much discussed and considered that there is in the public mind a uniform and concurrent sentiment which can be stated as a fact? By the public mind, of course, is not meant the mind of the whole public, but of that portion of the public which is cognizant of . . . the matter of inquiry. An examination of the evidence as given at the trial shows with entire certainty that the witness was not testifying to a fact which the general public mind had accepted as such, but that he was testifying to the opinions of individuals, as he had heard those individual opinions expressed.” The foregoing statement of the rule is pertinent in the case at bar. It is plain that the evidence sought to be introduced in the present case was hearsay and the exception to its exclusion must be overruled.
The second exception relates to the denial of the defendant’s motion for a directed verdict on the ground of variance. The complaint alleges that on or about April 5, 1928, the defendant did beget the complainant with child within the judicial district of the Municipal Court of the West Roxbury *594District of the City of Boston. The complainant testified that the alleged act of begetting was committed in Dedham, in Norfolk County, either on April 5 or April 11, 1928. Although the defendant denied begetting the complainant with child, he admitted that on April 11 he was with her in a parked automobile in Dedham at the place where the complainant testified the act of begetting was committed. A witness who was a resident of Dedham corroborated the testimony that the automobile was parked in Dedham on the evening of April 11, 1928. The defendant contends that as the complaint alleges that the act of begetting was committed within the judicial district of the West Roxbury District Court, and since all the evidence discloses that the act of begetting was committed in Dedham, the West Roxbury Court was without jurisdiction to try the alleged offence, and that on the complaint the defendant could not properly be found guilty.
The complaint alleges that “Wilhelmina M. McArdle of the City of Boston, in the County of Suffolk” on oath complains that the defendant did get her with child. While the evidence discloses that she lived within the judicial district of the Municipal Court of the West Roxbury District of the City of Boston, the defendant contends that since the complaint does not allege that the defendant or the complainant lives within said district, in accordance with
The defendant contends that since the statute gives jurisdiction to a district court where either the defendant or the mother of the illegitimate child lives, regardless of where the act was committed, it is unconstitutional and repugnant to art. 13 of the Declaration of Rights of our Constitution. There is no merit in this contention. One of the purposes of bastardy statutes is to adjudge a person to be the putative father of the child so that he may be compelled to aid the mother in its support. Hill v. Wells, 6 Pick. 104, 109. Commonwealth v. Domes, 239 Mass. 592, 594. The crime charged in the case at bar is closely allied with the duty of the putative father to aid in the support of the child. See Commonwealth v. Mekelburg, 235 Mass. 383, 386; Commonwealth v. Booth, 266 Mass. 80.
Exceptions overruled.