Com. v. Machado
| Decision Date | 06 November 1959 |
| Citation | 162 N.E.2d 71,339 Mass. 713 |
| Parties | COMMONWEALTH v. George A. MACHADO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Neil Colicchio, Medford (Ronald J. Chisholm, Winchester, with him), for defendant.
P. Harold Ready, Special Asst. Atty. Gen., for the Commonwealth.
Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS, and WHITTEMORE, JJ.
The defendant was indicted, tried, found guilty and sentenced for having unlawfully and carnally known and abused on August 23, 1957, a child then under sixteen years of age.
There was evidence that the child (who was born on December 11, 1941) was the defendant's stepdaughter. On February 23, 1958, she gave a detailed, signed statement to the police in which she accused the defendant of having had intercourse with her on a number of occasions commencing the middle of August, 1957, and stated that at five o'clock that morning, February 23, 1958, the defendant, clad only in a 'T' shirt, had gotten into bed with her, but had jumped out when her mother entered the room.
At the trial, jury waived, the child testified that she never had had intercourse with the defendant, but that in August, 1957, she had had intercourse with a boy whose name she did not know, and that the accusations contained in the statement to the police were not true. She gave birth to a baby on May 28, 1958.
The child's mother, the defendant's wife, testified that at five o'clock on a morning in February, 1958, she went into her daughter's room and saw the defendant in bed with her daughter, and that when he got out he wore only an undershirt.
One Balas, a police officer, testified that he showed the defendant the child's signed statement and asked him what he had to say, and that he replied 'that he neither admitted it nor denied it.'
The case is here on a report of the trial judge which raises questions as to whether or not the defendant can be convicted if the only affirmative evidence offered is his equivocal answer to the accusations contained in the statement and the evidence of the child's mother of conduct which she observed in February, 1958.
The testimony of the mother that she observed the defendant in bed with her daughter in February, 1958, tends to indicate the relationship between the defendant and his stepdaughter with which he was accused. '[W]hen a defendant is charged with any form of illicit sexual intercourse evidence of the commission of similar crimes by the same parties * * * if not too remote in time, is competent to prove an inclination to commit the act charged in the indictment * * * and is relevant to show the probable existence of the same passion or emotion at the time in issue.' Commonwealth v. Bemis, 242 Mass. 582, 585, 136 N.E. 597, 598. We do not think the evidence in this instance is too remote. The defendant relies upon Commonwealth v. Burke, 339 Mass. ----, 159 N.E.2d 856, where evidence that the defendant had occupied an apartment with a woman other than his wife seven months prior to his wife's death but not thereafter was held to be too remote on the issue of the defendant's alleged hostility toward his wife, whom he was accused of murdering. The Burke case is distinguishable. There the prosecution attempted to infer one attitude, namely, hostility on the part of the defendant toward his wife, by evidence tending to prove the existence of another, namely, the defendant's affection for another woman; and, further, there was no evidence that the allegedly adulterous relationship continued after the occupancy of the apartment seven months before the crime. In the present case the mother's testimony tended to show the same passion or emotion on the defendant's part, and there was further evidence, contained in the child's statement to the police (the truth of which could have been found to have been admitted), that the defendant had intercourse with his stepdaughter at various times after August, 1957, so that the event of August, 1957, was not, as in the Burke case, 'unconnected with later events of like nature.' The mother's testimony was not inadmissible for remoteness.
With respect to the testimony of Officer Balas as to ...
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