Rugg, C.J.
This is an indictment charging the defendant with rape.
1. Plainly there was no error in admitting evidence concerning the bottle containing ether found near the place of, and soon after, the alleged assault. The complainant and her mother both gave testimony as to the odor of ether following the assault.
2. Evidence as to the complaint made by the assaulted girl to her mother immediately succeeding the alleged crime was admissible. Commonwealth v. Cleary, 172 Mass. 175" court="Mass." date_filed="1898-10-29" href="https://app.midpage.ai/document/commonwealth-v-cleary-6426510?utm_source=webapp" opinion_id="6426510">172 Mass. 175.
3. Witnesses were permitted to testify that, at the police station in the presence of the defendant, the complainant said that she was positive that the defendant was the man who assaulted her. This testimony was admitted on the ground that it did not then appear whether the defendant was under arrest or not at the time. The chief of police testified that the defendant was not under arrest at that time but was placed under arrest after the talk about identification was over.' He also testified as to the identification of the defendant by the complainant, and that she became hysterical when she saw the defendant, and that the defendant, when brought into the presence of the complainant, started and changed color a good deal. The conduct of the defendant under these circumstances was admissible. There was no testimony that the defendant made any reply to the words of identification spoken by the complainant. The point is whether the words of the complainant in identifying him and his failure to speak were admissible. There was no error in admitting this evidence at the time because there was positive testimony that the defendant was not under arrest. If he was not under arrest, the evidence was competent.
Later the defendant testified in his own behalf as to the circumstances under which he came to the police station. If his testi*345many was believed, he was under arrest. French v. Bancroft, 1 Met. 502, 504. Mowry v. Chase, 100 Mass. 79" court="Mass." date_filed="1868-10-15" href="https://app.midpage.ai/document/mowry-v-chase-6415446?utm_source=webapp" opinion_id="6415446">100 Mass. 79, 85. Simmons v. Richards, 171 Mass. 281" court="Mass." date_filed="1898-05-20" href="https://app.midpage.ai/document/simmons-v-richards-6426392?utm_source=webapp" opinion_id="6426392">171 Mass. 281. But the jury were not bound to accept his testimony as true. They might have disbelieved it entirely. They might have given credence to the statement of the chief of police. Commonwealth v. Russ, 232 Mass. 58" court="Mass." date_filed="1919-01-23" href="https://app.midpage.ai/document/commonwealth-v-russ-6434641?utm_source=webapp" opinion_id="6434641">232 Mass. 58, 70. If it had been indubitable that the defendant had been under arrest at the time, it would have been the duty of the court on proper motion to have ordered stricken out the evidence that the complainant had said in the presence of the defendant that she was positive that he was the man who assaulted her and directed the jury to disregard it. Commonwealth v. Johnson, 199 Mass. 55" court="Mass." date_filed="1908-05-20" href="https://app.midpage.ai/document/commonwealth-v-johnson-6430290?utm_source=webapp" opinion_id="6430290">199 Mass. 55, 59. “ If a defendant while under arrest is charged with the crime by an accusation made in his presence and hearing, and he remains mute or unequivocally denies it, his silence or denial is not admissible in evidence against him. But if he makes an equivocal reply, the question or statement by which it was elicited and the answer or comment are admissible.” Commonwealth v. Spiropoulos, 208 Mass. 71" court="Mass." date_filed="1911-02-28" href="https://app.midpage.ai/document/commonwealth-v-spiropoulos-6431305?utm_source=webapp" opinion_id="6431305">208 Mass. 71, 74. But the evidence was conflicting on the point whether the defendant was then under arrest. So far as it was for the judge to pass upon the matter in determining the admissibility of evidence, he said that he thought the defendant was not under arrest. See Coughlin v. White, 236 Mass. 165" court="Mass." date_filed="1920-06-22" href="https://app.midpage.ai/document/coghlan-v-white-6435160?utm_source=webapp" opinion_id="6435160">236 Mass. 165. Since the evidence was conflicting, the motion to strike out the evidence as to the language of identification by the complainant was denied rightly. It was all a matter of fact to be left for the jury to decide. But the case did not rest there. The judge ruled positively in this connection that the defendant was not under arrest. That was error. That question should have been left to the jury with appropriate instructions, and direction given them to consider the conversation as to identification only in the event that they should find that the defendant was not under arrest. The defendant saved his rights in this connection by exception to the ruling.
Exceptions sustained.