Francis v. Rosa

| Mass. | Jun 17, 1890

Holmes, J.

1. The first exception is to allowing the complainant’s counsel to put to her the questions, “ Did you meet respondent at Mr. Smith’s in Provincetown two years ago?” and, “ What, if anything, has respondent said to you about marriage,—about June last?” It does not appear what the answers were, so that it does not appear that the respondent was prejudiced. Commonwealth v. Chaney, 148 Mass. 6" court="Mass." date_filed="1888-11-27" href="https://app.midpage.ai/document/commonwealth-v-chaney-6422925?utm_source=webapp" opinion_id="6422925">148 Mass. 6, 8. The form of the questions was a matter of discretion. York v. Pease, 2 .Gray, 282, 284. Green v. Gould, 3 Allen, 465. The subject matter of the inquiry was the relations of the parties,—a matter open to proof within discretionary limits of time, which do not appear to have been exceeded. Beers v. Jackman, 103 Mass. 192" court="Mass." date_filed="1869-11-15" href="https://app.midpage.ai/document/beers-v-jackman-6415878?utm_source=webapp" opinion_id="6415878">103 Mass. 192. Sullivan v. Hurley, 147 Mass. 387" court="Mass." date_filed="1888-10-01" href="https://app.midpage.ai/document/sullivan-v-hurley-6422857?utm_source=webapp" opinion_id="6422857">147 Mass. 387.

2. The complainant testified that the respondent had connection with her the day after Mr. Amber painted his carpet. Amber testified, that, a day or two before the respondent was alone with the complainant, he purchased paint of Thomas W. Dyer and painted a carpet with it. Dyer testified that Amber purchased paint of him on June 4 and 6, 1888. The admission of Amber’s and Dyer’s testimony was excepted to, but plainly was admissible to fix the date of the act alleged by the complainant. The statement by the judge in his charge to that effect is also excepted to, and the further objection is taken that he misstated the effect of the evidence or assumed facts which were not proved. It does not appear that any improper assumption was made, or that the judge’s attention was called to any such supposed assumption. The jury were warranted in finding that the carpet referred to by Amber was the same carpet as that referred to by the complainant, and that the paint referred to by Dyer was the same as that referred to by Amber. The instruction that the complainant need not prove the date the child was begotten to be the exact date alleged in the complaint, was correct. Bassett v. Abbott, 4 Gray, 69. Duhamell v. Ducette, 118 Mass. 569" court="Mass." date_filed="1875-10-23" href="https://app.midpage.ai/document/duhamell-v-ducette-6418263?utm_source=webapp" opinion_id="6418263">118 Mass. 569.

3. On the cross-examination of Amber, he was asked if he had not made admissions to one Vasconcellos that he was the father of the child, etc., which he denied. Vasconcellos was called by the respondent, and testified to the admissions. After-wards Amber was recalled by the complainant, and asked if he heard the evidence of Vasconcellos, and if it was true. This question was excepted to. Here again it does not appear what the answer was, but, assuming it to have been a denial, the question was merely a way of inquiring whether Amber adhered to his previous testimony, after having his memory refreshed by the opposing evidence. In view of the nature of the testimony, the form of the question was well enough, if the question of form were open. The instruction of the court, that Amber’s declarations, if made as Vasconcellos testified, might “be used to the extent of entirely destroying Amber’s evidence, but no further,” was sufficiently favorable for the respondent. Young v. Makepeace, 103 Mass. 50" court="Mass." date_filed="1869-10-15" href="https://app.midpage.ai/document/young-v-makepeace-6415846?utm_source=webapp" opinion_id="6415846">103 Mass. 50. Eddy v. Gray, 4 Allen, 435.

Exceptions overruled.