Commonwealth v. Cleary

• Citation: 172 Mass. 175,51 N.E. 746
• Parties: COMMONWEALTH v. CLEARY. SAME v. GUIHEEN.
• Decision Date: 31 October 1898
• Court: United States State Supreme Judicial Court of Massachusetts

172 Mass. 175

51 N.E. 746

COMMONWEALTH

v.CLEARY.

SAME

v.GUIHEEN.

Supreme Judicial Court of Massachusetts, Hampshire.

Oct. 31, 1898.

Exceptions from superior court, Hampshire county.

William C. Cleary and Patrick Guiheen were each convicted of unlawfully abusing a female child under the age of 16 years, and they except. Exceptions overruled.

J.C. Hammond, Dist. Atty., for the Commonwealth.

J.B. O'Donnell and J.T. Keating, for defendants.

HOLMES, J.

These are indictments for unlawfully abusing a female child under the age of 16 years. St.1893, c. 466, § 2. They come here on exceptions to evidence that the child “made complaint to her [mother] the next morning after the occurrence as to what had been done to her by the defendants the night before.” It does not appear that more was admitted than the fact that the child made complaint, with sufficient to identify the subject-matter, and therefore it is not necessary to consider whether the whole statement would have been admissible if offered, as the district attorney asks us to decide. The only question argued for the defendants is whether the statement appears, as matter of law, to have been too remote in point of time to be admissible. It is not argued that the common law in cases of rape does not apply. See Com. v. Roosnell, 143 Mass. 32, 8 N.E. 747;Com. v. Hackett, 170 Mass. 194, 196, 48 N.E. 1087.

The rule that, in trials for rape, the government may or must prove that the woman concerned made complaint soon after the commission of the offense, is a perverted survival of the ancient requirement that she should make hue and cry as a preliminary to bringing her appeal. Glanville, 14, 6; Bract. 147a; Fleta, 1, c. 25, § 14; St. 4 Edw. I. Stat. 2. Appeals became obsolete, and left rape to be dealt with by indictment before the development of the modern law of evidence. Lord Hale, after stating the old law as to appeals, quoting Bracton, went on to deal with the evidence upon an indictment for rape. Having stated that the party ravished might give evidence upon oath, the value of which would be affected by corroborative facts, he recurred to the matter of fresh complaint, and said that, if she “presently discovered the offense, made pursuit after the offender,” etc., “these and the like are concurring evidences, to give greater probability to her testimony.” 1 Hale, P.C. 632, 633. Obviously, this was suggested by, and merely echoed, the requirement in appeals, but it gave that requirement a more or less new turn. If it means, what it has been taken to mean, that the government can prove fresh complaint as part of its original case, it cannot be justified by the general principles of evidence which now prevail. In general, you cannot corroborate the testimony of a witness by proof that he has said the same thing before, when not under oath. But Lord Hale's statement of the law has survived as an arbitrary rule in the particular case, notwithstanding the later-developed principles of evidence; and, although nowadays recognized as an exception attempted to be fortified by exceptional reasons, still it is put upon the ground upon which it was placed by his words. The evidence is not admitted as part of the res gestae, or as evidence of the truth of the things alleged, or solely for the purpose of disproving consent,but for the more general purpose of confirming the testimony of the ravished woman. Reg. v. Lillyman [1896] 2 Q.B. 167, 170, 177; 3 Russ. Crimes (6th Ed.) 387, see Grave's note (m); State v. Kinney, 44 Conn. 153, 155; Haynes v. Com., 28 Grat. 942, 947, 948;Hornbeck v. State, 35 Ohio St. 277, 280;People v. O'Sullivan, 104 N.Y. 481, 486, 10 N.E. 880; Bedingfield's Case, 14 Am.Law Rev. 830, 838; 3 Greenl.Ev. § 213; 1 McClain, Cr.Law,...