Commonwealth v. Bird

• Decision Date: 22 September 1928
• Citation: 264 Mass. 485,162 N.E. 900
• Parties: COMMONWEALTH v. BIRD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 485

162 N.E. 900

COMMONWEALTH

v.BIRD.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 22, 1928.

Exceptions from Superior Criminal Court, Suffolk County; G. H. W. Hayes, Judge.

George Bird was convicted of neglecting to provide for the support of his illegitimate children, and he brings exceptions. Exceptions sustained.

1. Bastards k17 1/2-Application by one not shown to be public official or charged with duty, for commitment of husband as insane, held inadmissible, in trial of another for nonsupport of wife's illegitimate children, to show husband's nonaccess because of residence outside state (G. L. c. 273, s 15).

Application for commitment of husband to state hospital as insane held inadmissible on trial of another, under G. L. c. 273, s 15, for nonsupport of his illegitimate children, by wife of person so committed, to show latter's nonaccess to wife because of residence in another state as stated in application, where it was not shown that applicant was a public official or charged with any duty in making application or that he knew of facts stated.

2. Criminal law k1169(2)-Admission of election commissioner's record of defendant's residence at same place as mother of illegitimate children, in trial for nonsupport, held harmless, in view of his and his witnesses' testimony as to such fact.

In trial for nonsupport of defendant's illegitimate children, admission of official record of municipal board of election commissioners, showing that defendant and childrens' mother lived at same place on date subsequent to childrens' birth, held harmless to defendant, where he admitted lodging with her at various places and witnesses called by him testified that he lived at her home.

3. Bastards k17 1/2-Father's neglect or refusal to support illegitimate children is prima facie willful, without just cause, and unreasonable (G. L. c. 273, ss 7, 15, 16).

Father's neglect or refusal to support his illegitimate children is prima facie evidence that it was willful, without just cause, and unreasonable, under G. L. c. 273, ss 7, 15, 16.

4. Bastards k17 1/2-Defendant's admission that illegitimate children were his, his living with their mother, and all facts tending to show his paternity, were competent on trial for nonsupport (G. L. c. 273, s 15).

In trial, under G. L. c. 273, s 15, for neglect to provide for support of illegitimate children, defendant's admissions that they were his, his residence with their mother, and all facts tending to show his paternity, were competent.

5. Criminal law k1038(1)-Defendant, not objecting to court's remark that his failure to support illegitimate child was not disputed, cannot contend on appeal that there was no evidence thereof.

Defendant not objecting nor excepting to court's remark in instruction that his neglect or refusal to support illegitimate child was not disputed, cannot contend, on appeal from conviction of neglect to provide for support of his illegitimate children, that there was no evidence that he neglected or refused to support them.W. I. Schell, Asst. Dist. Atty., of Boston, for the commonwealth.

B. J. Killion, of Boston, for defendant.

CARROLL, J.

The defendant was found guilty upon a complaint under G. L. c. 273, § 15, charging that he ‘did unreasonably neglect to provide for the support of Georgette Bird and Adelle Bird, his illegitimate children.’ The mother of the children was Adelle Gregory, wife of Arthur Gregory. ‘No previous adjudication as to paternity had been made against this defendant.’ The complaint was dated March 7, 1927. The period of neglect was alleged to be ‘the three months next before the making of this complaint.’ The mother and her husband being insane did not testify at the trial. They were married August 25, 1913. The child Georgette was born December 19, 1915. Adelle was born July 4, 1917.

There was evidence that Arthur Gregory (also known as Archimede Giangregorio), the husband of Adelle Gregory, was committed to the Medfield State Hospital as an insane person on June 11, 1917. The application for his commitment, made by Charles F. Gaynor, was admitted against the defendant's exception. In the application one of the questions asked was, Has the patient resided in this commonwealth ‘five years continusly since 1860, and paid three taxes within said five years? If so, who, when, and in what city or town?’ The answer was, ‘In Indiana from 1913 to Dec., 1916; previously in Mass. 8 years.’ The defendant made a general objection to the introduction of this evidence without specifying any particular part of the record of commitment. In the charge to the jury the judge said:

‘Likewise you will have the record of the commitment and what is there stated is for your consideration and that may have a bearing as to access or nonaccess to the mother of three children.’

This part of the charge was excepted to by the defendant.

It is argued by the defendant that this record was not admissible; that the specific part of the record relating to the residence of the husband in Indiana from 1913, to December, 1916, was harmful; that under the instruction given the jury they could consider and give weight to this statement as showing that the husband resided in Indiana from 1913 to December, 1916, and not within the commonwealth during that period, and that he had no access to his wife during this time, one of the children being born December 19, 1915, and the other July 4, 1917.

[1] Many public records of official acts required by law to be reported are admissible in evidence and are prima facie evidence of the facts reported. Kennedy v. Doyle, 10 Allen, 161, 164;Shutesbury v. Hadley, 133 Mass. 242, 247. See Hanson v. South Scituate, 115 Mass. 336, 340;Worcester v. Northborough, 140 Mass. 397, 5 N. E. 270;Allen v. Kidd, 197 Mass. 256, 259, 84 N. E. 122. In Commonwealth v. Slavski, 245 Mass. 405, 140 N. E. 465, the authorities bearing on the question of the admissibility of public records were collected and in the course of the opinion, at page 417, 140 N. E. 469, it was said:

‘The principle which seems fairly deducible from them [the cases cited] is that a record of a primary fact, made by a public officer in the performance of official duty is or may be made by legislation competent prima facie evidence as to the existence of that fact, but that records of investigations and inquiries...