Commonwealth v. Bemis

• Decision Date: 11 October 1922
• Citation: 242 Mass. 582,136 N.E. 597
• Parties: COMMONWEALTH v. BEMIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 582

136 N.E. 597

COMMONWEALTH

v.BEMIS.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 11, 1922.

Exceptions from Superior Court Worcester County; Frederick W. Fosdick, Judge.

Ralph S. Bemis was found guilty of offenses, and he brings exceptions. Overruled.

Defendant was charged in three counts with (1) carnally knowing and abusing a female child under the age of 16 years, and (2, 3) assault with intent to carnally know and abuse a female child under such age. He was found guilty on the first count of assault with intent to commit the crime charged, and on the other counts of assault only. The exceptions were to the admission of evidence of sexual intercourse with one of the complaining witnesses after she had attained the age of 16 years, to the admission of a physician's testimony concerning the examination of one of the complainants, and to the refusal or requested instructions.

Edward T. Esty, Dist. Atty., of Worcester, Emerson W. Baker, Asst. Dist. Atty., of Fitchburg, and Charles B. Rugg, Asst. Dist. Atty., of Worcester, for the Commonwealth.

John H. Meagher, Emil Zaeder, and David F. O'Connell, all of Worcester, for defendant.

PIERCE, J.

The defendant was tried upon an indictment charging in count 1:

‘That the defendant Ralph S. Bemis, on October 31, 1919, at Northboro, in said county of Worcester, did assault Ida E. Clifford, a female child under the age of 16, with intent unlawfully and carnally to know and abuse her, and her, the said Ida E. Clifford, did unlawfully and carnally know and abuse.’

In count 2:

‘That the defendant, Ralph S. Bemis, on April 4, 1920, at said Northboro, did in and upon Ida E. Clifford, a female child under the age of 16 years, make an assault with intent her, the said Ida E. Clifford, unlawfully and carnally to know and abuse.’

And in count 3:

‘That the defendant, Ralph S. Bemis, on August 21, 1920, at said Northboro, in and upon Ada V. Clifford, a female child under the age of 16 years, did make an assault with intent her, the said Ada V. Clifford, unlawfully and carnally to know and abuse.’

Ida E. Clifford attained the age of 16 years on July 31, 1920. Ada V. Clifford attained the age of 16 years on October 19, 1921. Ida E. Clifford alone testified that on October 31, 1919, and on April 11, 1920, the defendant had sexual intercourse with her. There was no corroboration.

[1] Subject to the exception of the defendant Ida E. Clifford testified that in August, 1920, after she had attained the age of 16 years, the defendant came to her bedroom and there had sexual intercourse with her. In support of this exception the defendant relies upon the general rule that evidence of a distinct crime unconnected with that laid in the indictment cannot be given in evidence. Commonwealth v. Feci, 235 Mass. 562, 567, 127 N. E. 602. The rule of criminal evidence involved is however subject to many exceptions. Commonwealth v. Choate, 105 Mass. 451;Commonwealth v. Bradford, 126 Mass. 42;Commonwealth v. Robinson, 146 Mass. 571, 16 N. E. 452;Commonwealth v. Snell, 189 Mass. 12, 75 N. E. 75,3 L. R. A. (N. S.) 1019;Moore v. United States, 150 U. S. 57, 14 Sup. Ct. 26, 37 L. Ed. 996;People v. Molineaux, 168 N. Y. 264, 61 N. E. 286,62 L. R. A. 193. One of the recognized exceptions invariably followed in this commonwealth is that when a defendant is charged with any form of illicit sexual intercourse evidence of the commission of similar crimes by the same parties, though committed in another place, if not too remote in time, is competent to prove an inclination to commit the act charged in the indictment (Commonwealth v. Nichols, 114 Mass. 285, 19 Am. Rep. 346), and is relevant to show the probable existence of the same passion or emotion at the time in issue (Sullivan v. Hurley, 147 Mass. 387, 18 N. E. 3;Negus v. Foote, 228 Mass. 375, 117 N. E. 351). The judge correctly instructed the jury in respect to the limited use it was permitted to make of the...