Com. v. Welcome

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before WILKINS; REARDON
• Citation: Com. v. Welcome, 201 N.E.2d 827, 348 Mass. 68 (Mass. 1964)
• Decision Date: 29 October 1964
• Parties: COMMONWEALTH v. Frank T. WELCOME.

Page 827

201 N.E.2d 827

348 Mass. 68

COMMONWEALTH v. Frank T. WELCOME.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Oct. 5, 1964.

Decided Oct. 29, 1964.

Stephen R. Kaplan, Amherst, for defendant.

Oscar Grife, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

REARDON, Justice.

The indictment charges the defendant with an indecedent assault and batter on a female child under the age of fourteen years. The case was tried before a judge sitting without a jury under G.L. c. 278, §§ 33A-33G. The defendant was found guilty and sentenced to the Massachusetts Correctional Institution at Walpole. He is here on appeal and has alleged various assignments of error.

The incident which gave rise to the indictment occurred in April, 1963, in Amherst when the defendant who was driving his young son home from school at noon also gave a ride to a seven year old girl. Disposition of the assignments of error does not require any extended discussion of the details of the alleged assault.

1. The defendant contends that it was error to deny his motion for a psychiatric examination of the little girl who was the complaining witness, that there might be a report to the court on her ability to tell the truth, and on her mental health and intelligence. Such an examination, which may be ordered under G.L. c. 123, § 99, is purely discretionary with the trial judge. He saw the girl, and the transcript of evidence is amply descriptive of the opportunity which he took to observe her, as it is of the effort made by the judge throughout to lighten the impact of the proceedings upon the children who testified. There was no error in his denital of the motion.

2. Nor did he err in permitting her to testify. The colloquy between judge and witness prior to her testimony was as follows: THE JUDGE: 'Do you know what it means to tell a lie?' THE WITNESS: 'Yes.' THE JUDGE: 'What does that mean to you?' THE WITNESS: 'You tell something that's wrong.' THE JUDGE: 'And what happens to little girls who tell things that aren't true?' THE WITNESS: 'I don't know.' The test elaborated in Commonwealth v. Tatisos, 238 Mass. 322, 325-326, 130 N.E. 495, does not call for a full understanding by a juvenile witness of the obligations of the oath. The witness in stating that she knew a lie was the telling of 'something that's wrong' showed awareness of her duty to tell the truth. The decision of the trial judge to allow her testimony was warranted. Commonwealth v. Robinson, 165 Mass. 426, 427, 43 N.E. 121. See Wheeler v. United States, 159 U.S. 523, 16 S.Ct. 93, 40 L.Ed. 244, 524-525; Wigmore, Evidence (3d ed.) § 1821.

3. A policewoman testified over objection and exception by the defendant that in interrogation of the defendant at the Amherst police station she said to him, 'I understand you have been involved in something like this before,' to which he answered, 'Yes.' She then asked, 'How old were the little girls that time?' to which his response was that 'they were about four and six years old.' This testimony was not relevant to prove that the defendant was guilty of the crime for which he was indicted. It was at the same time highly prejudicial to the defendant. Commonwealth v. Ellis, 321 Mass. 669, 670, 75 N.E.2d 241. It is very possible that the finding made by the judge was not at all affected by what he heard of the defendant's previous difficulties. We can only speculate upon the effect of that evidence. We are not in a position to say that it had none and such doubts as we entertain can only be resolved in favor of the defendant. Commonwealth v. Stone, 321 Mass. 471, 73 N.E.2d 896. We invoke the rule that evidence of a distinct crime unconnected with that for which the defendant is indicted cannot be received. An exception to this rule is stated in Commonwealth v. Machado, 339 Mass. 713, 162 N.E.2d 71, where there was evidence of prior illicit sexual intercourse between the same parties. In the present...