Commonwealth v. Cleary

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtHOLMES
Citation172 Mass. 175,51 N.E. 746
Decision Date31 October 1898
PartiesCOMMONWEALTH v. CLEARY. SAME v. GUIHEEN.

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.


[172 Mass. 175]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 [172 Mass. 176]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...

To continue reading

Request your trial
47 practice notes
  • Com. v. Montanino
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 11, 1991
    ...404 Mass. at 228-230, 535 N.E.2d 193; Commonwealth v. Sherry, 386 Mass. 682, 690-691, 437 N.E.2d 224 (1982); Commonwealth v. Cleary, 172 Mass. 175, 177, 51 N.E. 746 (1898). Before a jury may be allowed to treat fresh complaint testimony as corroborative evidence, it must determine first tha......
  • Com. v. Bailey
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 7, 1976
    ...that the victim of any crime of violence make hue and cry to arouse the neighborhood. See Holmes, J., in Commonwealth v. Cleary, 172 Mass. 175, 176, 51 N.E. 746 (1898); 2 F. Pollack F. Maitland, The History of English Law Before the Time of Edward I 578--579 (2d ed. 1959); 6 J. Wigmore, Evi......
  • Com. v. Lavalley
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 15, 1991
    ...370 Mass. 388, 396, 348 N.E.2d 746 (1976); Commonwealth v. Ellis, 319 Mass. 627, 629, 67 N.E.2d 234 (1946); Commonwealth v. Cleary, 172 Mass. 175, 176-177, 51 N.E. 746 (1898). The "fresh complaint doctrine is justified on the ground that a victim's failure to make prompt complaint might be ......
  • Com. v. Edgerly
    • United States
    • Appeals Court of Massachusetts
    • May 21, 1982
    ...v. McCarthy, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1981) 1987, 1993, 428 N.E.2d 832. See generally Commonwealth v. Cleary, 172 Mass. 175, 177, 51 N.E. 746 (1898); Commonwealth v. Rollo, 203 Mass. 354, 355, 89 N.E. 556 (1909); Commonwealth v. Ellis, 319 Mass. 627, 629-630, 67 N.E.2d 2......
  • Request a trial to view additional results
47 cases
  • Com. v. Montanino
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 11, 1991
    ...404 Mass. at 228-230, 535 N.E.2d 193; Commonwealth v. Sherry, 386 Mass. 682, 690-691, 437 N.E.2d 224 (1982); Commonwealth v. Cleary, 172 Mass. 175, 177, 51 N.E. 746 (1898). Before a jury may be allowed to treat fresh complaint testimony as corroborative evidence, it must determine first tha......
  • Com. v. Bailey
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 7, 1976
    ...that the victim of any crime of violence make hue and cry to arouse the neighborhood. See Holmes, J., in Commonwealth v. Cleary, 172 Mass. 175, 176, 51 N.E. 746 (1898); 2 F. Pollack F. Maitland, The History of English Law Before the Time of Edward I 578--579 (2d ed. 1959); 6 J. Wigmore, Evi......
  • Com. v. Lavalley
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 15, 1991
    ...370 Mass. 388, 396, 348 N.E.2d 746 (1976); Commonwealth v. Ellis, 319 Mass. 627, 629, 67 N.E.2d 234 (1946); Commonwealth v. Cleary, 172 Mass. 175, 176-177, 51 N.E. 746 (1898). The "fresh complaint doctrine is justified on the ground that a victim's failure to make prompt complaint might be ......
  • Com. v. Edgerly
    • United States
    • Appeals Court of Massachusetts
    • May 21, 1982
    ...v. McCarthy, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1981) 1987, 1993, 428 N.E.2d 832. See generally Commonwealth v. Cleary, 172 Mass. 175, 177, 51 N.E. 746 (1898); Commonwealth v. Rollo, 203 Mass. 354, 355, 89 N.E. 556 (1909); Commonwealth v. Ellis, 319 Mass. 627, 629-630, 67 N.E.2d 2......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT