Com. v. Stappen

• Decision Date: 04 June 1957
• Citation: 143 N.E.2d 221,336 Mass. 174
• Parties: COMMONWEALTH v. Charles F. STAPPEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 221

143 N.E.2d 221

336 Mass. 174

COMMONWEALTH v. Charles F. STAPPEN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 6, 1957.

Decided June 4, 1957.

Wilfred S. Mirsky, Boston, for defendant.

William A. Doherty, Asst. Dist. Atty., Boston, Mass., for Commonwealth.

Before WILKINS, C. J., and RONAN, WILLIAMS, WHITTEMORE and CUTTER, JJ.

WILLIAMS, Justice.

The defendant was indicted in two counts for failure to provide for the support of his wife and two minor children. G.L.(Ter.Ed.) c. 273, § 1. Previous to trial he filed a motion for 'a blood test under provisions' of G.L. (Ter.Ed.) c. 273, § 12A, to the allowance of which the Commonwealth objected on the ground that § 12A was inapplicable to proceedings for nonsupport under § 1. The judge of the Superior Court to whom the motion was presented thereupon reported to this court without decision the following questions of law. G.L.(Ter.Ed.) c. 278, § 30A, inserted by St.1954, c. 528, '1. Whether the provisions of G.L. (Ter.Ed.) c. 273, § 12A, are applicable to proceedings brought for nonsupport of minor children under G.L. (Ter.Ed.) c. 273, § 1. 2. Whether expert testimony of blood tests, which show an exclusion as defined in G.L. (Ter.Ed.) c. 273, § 12A, is admissible on the question of paternity in criminal proceedings brought under G.L. (Ter.Ed.) c. 273, § 1, for nonsupport of minor children born during wedlock.'

Section 12A, inserted by St.1954, c. 232, provides that 'In any proceeding to determine the question of paternity, the court, on motion of the defendant, shall order the mother, her child and the defendant to submit to one or more blood grouping tests, to be made by a duly qualified physician or other duly qualified person, designated by the court, to determine whether or not the defendant can be excluded as being the father of the child. The results of such tests shall be admissible in evidence only in cases where definite exclusion of the defendant as such father has been established. If one of the parties refuses to comply with the order of the court relative to such tests, such fact shall be admissible in evidence in such proceeding unless the court, for good cause, otherwise orders.' It is intended to be inserted in that part of c. 273 which concerns the subject of illegitimacy and to follow § 12 which deals which the adjudication of the paternity of bastard children.

As the present indictment is not a 'proceeding to determine the question of paternity,' § 12A does not in our opinion authorize the court to order the mother and children therein named to submit to a blood grouping test. The language of § 12A is the same as that employed in Title 28 Purdon's Pennsylvania Statutes, § 306, inserted by a statute enacted in 1951. The matter of blood grouping tests on order of the court appears to have been first presented to the Massachusetts Legislature in the form of a proposed bill (1954 House Doc. No. 666) which, following the language of Ohio Rev. Code, § 2317.47, provided that the court order submission to a blood grouping test 'Whenever it shall be relevant in a civil or criminal action or proceeding to determine the paternity or identity of any person * * *.' It is significant, and persuasive of the correctness of our construction of the statute, that in the final draft of the proposed bill (1954 House Doc. No. 2495) and in the statute as enacted the language of the Pennsylvania statute was adopted in preference to that of the Ohio code. This Pennsylvania statute has been construed in that Commonwealth to be inapplicable in a proceeding similar to that in the present case. Commonwealth v. Heydt, 3 Pa. Dist. & Co. R.2d, Pa., 129, 130.

Apart from statutory authority we think expert testimony of blood grouping tests showing the definite exclusion of the defendant as the father of a child the support of whom is the object of an indictment or complaint under c. 273, § 1, is admissible if otherwise competent. State v. Damm, 64 S.D. 309, 312, 317, 266 N.W. 667. Beach v. Beach, 72 App.D.C. 318, 114 F.2d 479, 481, 482, and cases cited in footnote 6 at page 481, 131 A.L.R. 804. Wong Fuey Ying v. Dulles, D.C.D.Mass., 137 F.Supp. 470, 472. See State ex rel. Walker v. Clark, 144 Ohio St. 305, 314, 58 N.E.2d 773. There is substantial authority to support the scientific reliability of blood grouping tests to prove biologically the impossibility of paternity. State v. Damm, supra, 64 S.D. at pages 312-313, 266 N.W. at page 668, and authorities there collected. Jordan v. Mace, 144 Me. 351, 354, 69 A.2d 670. Groulx v. Groulx, 98 N.H. 481, 483, 103 A.2d 188, 46 A.L.R.2d 994. Cortese v. Cortese, 10 N.J.Super. 152, 156-157, 76 A.2d 717. Wigmore on Evidence (3d ed.) s. 165a. McCormick on Evidence, s. 178. Shanks v. State, 185 Md. 437, 45 A.2d 85, 163 A.L.R. 939. 46 A.L.R.2d 1000. See Euclide v. State, 231 Wis. 616, 620, 286 N.W. 3; Ross v. Marx, 21 N.J.Super. 95, 99, 90 A.2d 545; 'C' v. 'C', 200 Misc. 631, 633,...