Lawlor v. Wolff

180 Mass. 448 | Mass. | 1902

Knowlton, J.

The only exceptions in this case are to the refusal of the court to allow a physician to answer as an expert two questions put by the defendant’s counsel.

The complainant testified that the defendant forcibly had sexual intercourse with her; that she struggled and endeavored to overcome him and made all the resistance that was within her power, but he overcame this resistance and ravished her. The defendant proposed to ask .the witness Canfield the following question: “ Taking a woman of the ordinary health and strength, and a man — the male —of relatively the same strength seeking to have carnal knowledge of her body, is it possible for him to do so without her consent ? ” The witness was a physician practising in Boston, and he was being examined as an expert. But we do not understand from the bill of exceptions that he had qualifications beyond those of ordinary physicians. Assuming this to be so, it does not appear that he had any special or peculiar means of knowledge on the subject to which the question relates, or that his opinion would be more likely to be correct than that of jurors. The relative strength and activity of a man and a woman struggling with each other for the mastery is a matter of common knowledge so far as it can be known at all, and there is no reason to suppose that physicians have had experience that would enable them to judge better than others as to the probable result of a struggle of the kind testified to.

Moreover it does not appear what the defendant offered to prove by the witness. If an affirmative answer had been given it would not have been favorable to the defendant, while a negative answer, if true, would exclude the possibility of the commission of rape unless the man was of greater relative strength than the woman, or unless he rendered her unconscious by the use of drugs, or otherwise. As this crime has been recognized by the law and punished by the courts from early times, it is not to be presumed that such an answer would have been given, and in the absence of a formal offer of proof or of something equivalent, there is nothing to show that the defendant was harmed, even if the question properly might have been allowed. Farnum v. Pitcher, 151 Mass. 470, 475. The defendant has no good ground of exception to the refusal to allow this question to be asked.

The second question is not much different from the first. Although there was a reference to possible anatomical or medical knowledge as bearing on the matters testified to by the complainant, it does not appear nor does it seem probable that any such knowledge, as distinguished from the knowledge of common men, would aid in determining the question before the court. For the reasons given in regard to the first question a majority of the court are of opinion that the ruling was right as to this also.

Exceptions overruled.