Commonwealth v. Baxter

Citation267 Mass. 591,166 N.E. 742
PartiesCOMMONWEALTH v. BAXTER.
Decision Date08 June 1929
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Suffolk County; John M. Gibbs, Special Judge.

Bastardy prosecution by the Commonwealth against John Baxter. Defendant was found guilty, and he brings exceptions. Exceptions overruled.

R. E. McGuire and J. J. Murphy, Asst. Dist. Attys., both of Boston, for the Commonwealth.

J. F. Barry of Boston, for defendant.

CROSBY, J.

On a complaint issued from the municipal court of the West Roxbury district of the city of Boston, under G. L. c. 273, § 11, alleging that on or about April 5, 1928, at Boston and within the judicial district of said court, the defendant, not being the husband of the complainant, did get her with child, he was adjudged the father of said child. The defendant appealed, and was found guilty by a jury. The case is here on the defendant's exceptions to the exclusion of certain evidence, and to the refusal of the trial judge to grant the defendant's motion for a directed verdict on the ground of a variance between the evidence and the allegations of the complaint respecting the place where the offense was alleged to have been committed.

One Davies, not a member of the community where the complainant resided, was employed by the defendant as an investigator. He testified that he had interviewed five named persons, and that he had learned upon inquiry, and knew of, the complainant's general reputation with respect to truth and veracity. He was asked, ‘What did you find her reputation in this respect to be?‘ The question was excluded by the trial judge subject to the defendant's exception. The defendant offered to show that if permitted to answer the witness would testify that the reputation of the complainant with respect to truth and veracity was bad. This exception cannot be sustained. The complainant's reputation for truth and veracity could be shown only by evidence of her general reputation in the community as disclosed by the common speech of her neighbors and members of the community. Commonwealth v. Lawler, 12 Allen, 585, 586;Commonwealth v. Porter, 237 Mass. 1, 4, 129 N. E. 298;Clark v. Eastern Massachusetts Street Railway, 254 Mass. 441, 443, 150 N. E. 184. It cannot be shown by what the impeaching witness ‘may have heard others say who numerically may be few and insignificant,’ F. W. Stock & Sons v. Dellapenna, 217 Mass. 503, 506, 105 N. E. 378, 379, nor by what the impeaching witness may have heard said on two occasions which he specifies, Commonwealth v. Rogers, 136 Mass. 158. A stranger sent by a party to the neighborhood of the complainant to investigate her character is not permitted to testify as to the result of his inquiries. Commonwealth v. Hunt, 243 Mass. 286, 287, 137 N. E. 268;Douglass v. Tousey, 2 Wend. (N. Y.) 352, 354, 20 Am. Dec. 616;People v. Loris, 131 App. Div. 127, 129, 115 N. Y. S. 236. The testimony sought to be introduced in the case at bar was the result of the witness' inquiries of five individuals. The witness not being a member of the community had no knowledge of the reputation of the complainant other than what he learned from these individuals. So far as the witness was concerned his knowledge rested on pure hearsay. It was said in Walker v. Moors, 122 Mass. 501, 504: ‘The distinction between reputation and hearsay evidence is sometimes a difficult practical question, and is not always kept clearly in mind in the introduction of testimony upon a trial. General reputation is a fact. The mere declaration of one or many is hearsay. It does not require a multitude of witnesses to prove the fact that there is a general reputation upon a particular subject. The question is a simple one of fact, Is there a general reputation? Has the subject been so much discussed and considered that there is in the public mind a uniform and concurrent sentiment which can be stated as a fact? By the public mind, of course, is not meant the mind of the whole public, but of that portion of the public which is cognizant of * * * the matter of inquiry. An examination of the evidence as given at the trial shows with entire certainty that the witness was not testifying to a fact which the general public mind had accepted as such, but that he was testifying to the opinions of individuals, as he had heard those individual opinions expressed.’ The foregoing statement of the rule is pertinent in the case at bar. It is plain that the evidence sought to be introduced in the present case was hearsay and the exception to its exclusion must be overruled.

[3][4] The second exception relates to the denial of the defendant's motion for a directed verdict on the ground of variance. The complaint alleges that on or about April 5, 1928, the defendant did beget the complainant with child within the judicial district of the municipal court of the West Roxbury district of the city of Boston. The complainant testified that the alleged act of begetting was committed in Dedham, in Norfolk county, either on April 5 or April 11, 1928. Although the defendant denied begetting the complainant with child, he admitted that on April 11 he was with her in a parked...

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26 cases
  • Com. v. United Food Corp.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 11, 1978
    ...the exclusion of reputation evidence obtained as a result of inquiry by a person not a member of the community. Commonwealth v. Baxter, 267 Mass. 591, 593, 166 N.E. 742 (1929); Commonwealth v. Hunt, 243 Mass. 286, 287, 137 N.E. 268 (1922). See 3 J. Wigmore, Evidence § 692 (Chadbourn rev.197......
  • Commonwealth v. Town of Hudson
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 29, 1943
  • Arnold v. Alton R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 21, 1939
    ...... highly prejudicial to plaintiff. Sec. 1002, R. S. 1929;. State v. Houston, 263 S.W. 219; Young v. Corrigan, 208 F. 431; Commonwealth v. Baxter,. 166 N.E. 742; Minkow v. United States, 5 F.2d 319;. State v. Miller, 130 P. 356; Poe v. Poe,. 124 S.W. 1029; Ulrich v. C., B. & Q. Ry. ......
  • Com. v. Sheline
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 24, 1984
    ...any report of his character expressed"), cert. denied, 389 U.S. 872, 88 S.Ct. 159, 19 L.Ed.2d 153 (1967); Commonwealth v. Baxter, 267 Mass. 591, 592-593, 166 N.E. 742 (1929) (testimony based on interviews of five named persons); Commonwealth v. Porter, 237 Mass. 1, 3-4, 129 N.E. 298 (1921) ......
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