319 Mass. 627 | Mass. | 1946
The defendant was indicted in ten counts for unlawfully and carnally knowing and abusing a female child under sixteen. G. L. (Ter. Ed.) c. 265, § 23. He waived his right to trial by jury and was tried and found guilty.
1. Certain requests for rulings designed to raise the question of law whether the evidence was sufficient to warrant a conviction were denied subject to the defendant’s exception. We omit detailed recital of the evidence. The defendant concedes, as he necessarily must, that the testimony of the complainant, if believed, was proof of guilt. His contention is that the burden on the Commonwealth of proving guilt.beyond a reasonable doubt was not sustained, because the uncorroborated testimony of the complainant was “replete with obvious and inherent improbabilities, contradicted in material particulars by her testimony in the lower court, and overwhelmingly discredited by a
2. The defendant excepted to the admission in evidence of statements of the complainant made to her mother and later to the police on March 28, 1944. Nine offences were charged to have been committed on various dates in January, February, and March, 1944. The statements in question were each admitted as a fresh complaint solely with reference to the tenth offence which was alleged to have occurred between 3:10 p.m. and 3:45 p.m. on March 28. The complainant, who testified in great detail as to the occurrences on the various dates, testified that on March 28 at first she told her mother she. had to stay after school to help the teacher, and then said she was in the defendant’s tailor shop and the defendant “did things to her.” With reference to the same conversation the mother testified that she talked to the complainant after her return home at 4:30 p.m. and asked what the complainant had been doing in the tailor shop; that at first the complainant said nothing, but then started to cry and said that he “was doing bad things to her.” A police officer, called as a witness by the Commonwealth, testified that at 8 p.m. on March 28 he talked with the complainant at the police station in the presence of her mother and two other police officers; and that the complainant’s testimony, which he had heard, ■ did pot differ in any respect from what she had told him on March 28. “Testimony that an alleged victim of rape or similar outrage made a voluntary complaint of the fact of the assault after the event is generally held admissible in a criminal prosecution. ... In this Commonwealth the ground of admission is held to be the corroboration of the testimony of the complainant as a witness. . . . [[The] whole of the statement made by her, including the details, is admissible.” Glover v. Callahan, 299 Mass. 55, 57, 58. Commonwealth v. Cleary, 172 Mass. 175, 176-177. Commonwealth v. Gangi, 243 Mass. 341, 344. See Wigmore,
3. Subject to the defendant’s exception, the same police officer was permitted to testify that on the evening of March 28 in the presence of the defendant, who was at the police station but not under arrest, the complainant retold the same story which she had previously related to the police officers. The judge stated that the evidence was competent on the ground that “if the man is not under arrest there is some obligation on his part to make denial.” See Commonwealth v. Twombly, ante, 464, 465. The witness then testified that he asked the defendant if he understood what the complainant had said; that the defendant said that he did; and that the witness asked, “What have you to say to that?” and the defendant replied, “It is a frame-up. I am too old. I am a sick man. I am sixty years old. I .have had this little girl sweeping my floor for several weeks, and never harmed her.” It is clear that the defendant’s reply was a complete denial of the charge. It was open to but a single unequivocal interpretation. Compare Commonwealth v. Spiropoulos, 208 Mass. 71, 74. The stated basis of competency of the evidence, which was received as a sort of admission, did not exist. This exception must be sustained. Commonwealth v. Trefethen, 157 Mass. 180, 197. Commonwealth v. Kosior, 280 Mass. 418, 422-423. Commonwealth v. Polian, 288 Mass. 494, 496. Commonwealth v. Twombly, ante, 464, 465.
Other questions of evidence not likely to arise at another trial are not considered.
Exceptions sustained.