264 Mass. 485 | Mass. | 1928
The defendant was found guilty upon a complaint under.G. L. c. 273, § 15, charging that he “did unreasonably neglect to provide for the support of Georgette Bird and Adelle Bird, his illegitimate children.” The mother
There was evidence that Arthur Gregory (also known as Archimede Giangregorio), the husband of Adelle Gregory, was committed to the Medfield State Hospital as an insane person on June 11, 1917. The application for his commitment, made by Charles F. Gaynor, was admitted against the defendant’s exception. In the application one of the questions asked was, Has the patient resided in this Commonwealth “five years continuously since 1860, and paid three taxes within said five years? If so, who, when, and in what city or town?” The answer was, “In Indiana from 1913 to Dec., 1916; previously in Mass. 8 years.” The defendant made a general objection to the introduction of this evidence without specifying any particular part of the record of commitment. In the charge to the jury the judge said: “Likewise you will have the record of the commitment and what is there stated is for your consideration- and that may have a bearing as to access or nonaccess to the mother of these children.” This part of the charge was excepted to by the defendant.
It is argued by the defendant that this record was not admissible; that the specific part of the record relating to the residence of the husband in Indiana from 1913, to December, 1916, was harmful; that under the instruction given the jury they could consider and give weight to this statement as showing that the husband resided in Indiana from 1913 to December 1916, and not within the Commonwealth during that period, and that he had no access to his wife during this time, one of the children being born December 19, 1915, and the other July 4, 1917.
Many public records of official acts required by law to be
Applying this rule to the application for commitment signed by Gaynor, the application was not admissible and the jury could not take into consideration the statement that the husband was a resident of Indiana from 1913 to December, 1916. It did not appear that Gaynor was a public official or that he was charged with any duty in making the application. There is nothing to show in what capacity he acted, or that he knew of the facts stated; the statement as to the residence of Gregory (Giangregorio) in Indiana was not responsive to the question asked. In the circumstances the application was not material. It had no tendency to prove that the husband resided in Indiana during the period stated and could not be considered by the jury as bearing on the question of access or nonaccess. Jewett v. Boston Elevated Railway, 219 Mass. 528. Commonwealth v. Slavski, supra. See Butchers Slaughtering & Melting Association v. Boston, 214 Mass. 254, 258. The defendant’s exception to the admission of the application for commitment is sustained.
The official record of the board of election commissioners of Boston for the year 1922 showing that Adelle Bird lived at 754 Parker Street, Suite 1, that her reported residence
The judge instructed the jury that if Georgette and Adelle Bird were the illegitimate children of the defendant, proof of neglect or refusal to support them was prima facie evidence that the neglect or refusal was unreasonable. Where there is evidence of neglect or refusal by a defendant to support his children, such neglect or refusal is prima facie evidence that it was wilful, without just cause and unreasonable. There was no error in this instruction. Commonwealth v. Callaghan, 223 Mass. 150. G. L. c. 273, §§ 7, 15,16.
The evidence tending to show that Georgette and Adelle Bird were the children of the defendant was competent. His admissions that the children were his, his living with their mother, and all the facts relied on by the Commonwealth were material and admissible on the question of the paternity of the children. Phillips v. Hoyle, 4 Gray, 568, 571. Francis v. Rosa, 151 Mass. 532. Commonwealth v. Brophy, 235 Mass. 438. As there was evidence that the husband of Mrs. Gregory did not have access to her during the time when according to the course of nature he could be their father, Hemmenway v. Towner, 1 Allen, 209, Taylor v. Whittier, 240 Mass. 514, and similar cases, are not applicable.
The record does not show that the defendant neglected or refused to support the children, but this question apparently was not in issue and was not raised at the trial. The defendant denied that he was the.father of the children, and it would seem that this was the question involved and not that
For the reásons that the application for commitment was erroneously admitted and was harmful to the defendant, the exceptions are sustained.
So ordered.