Commonwealth v. Duff

• Decision Date: 23 May 1923
• Citation: 245 Mass. 81,139 N.E. 351
• Parties: COMMONWEALTH v. DUFF (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

245 Mass. 81

139 N.E. 351

COMMONWEALTH

v.DUFF (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

May 23, 1923.

Exceptions from Superior Criminal Court, Middlesex County; John F. Brown, Judge.

George Duff was found guilty under two indictments for carnal abuse of a girl under 16 years of age, and he brings exceptions. Exceptions sustained.

The exceptions were to the admission of evidence, to the exclusion of evidence, including evidence that the criminal proceedings against defendant were instituted by the girl's mother, and to a part of the charge.

E. P. Saltonstall, Dist. Atty., and Leverett Saltonstall, Asst. Dist. Atty., both of Boston, for the Commonwealth.

Qua, Howard & Rogers, Melvin G. Rogers, and Francis M. Qua, all of Lowell, for defendant.

CARROLL, J.

These are two indictments charging the defendant with carnal abuse of Agnes Hall, alleged to be under 16 years of age at the dates of the alleged offenses, on February 15, March 15, April 15, May 15, June 15, July 15, August 15, and September 15 in the year 1921. The cases were tried together and a verdict of guilty on each indictment was returned.

1. An examination of the girl in 1922 by a medical expert, indicated that sexual intercourse had been had with her. The commonwealth, subject to the defendant's exception, asked Agnes Hall if she was in ‘a family way about December 1, 1921,’ and ‘had a child taken from her.’ She answered in the affirmative and said that the child taken from her in December, 1921, was ‘2 or 2 1/2 months along.’ The commonwealth had the right to prove by proper evidence that sexual intercourse had been had with the girl; and as showing that such intercourse had taken place, the commonwealth could show that in December, 1921, she was in a family way and had a child taken from her. This evidence tended to establish the fact that some one, prior to December, 1921, had carnally known her, and the evidence was admitted properly. Commonwealth v. Bemis, 242 Mass. 582, 136 N. E. 597.

2. The defendant, on cross-examination of Agnes Hall, offered to show that during the period of the offenses alleged in the indictment, and ‘from 2 to 2 1/2 months before December 1, 1921,’ she had sexual intercourse with a man other than the defendant. To the exclusion of this evidence the defendant excepted. This evidence was not admissible to show consent by Agnes Hall. Commonwealth v. Murphy, 165 Mass. 66, 42 N. E. 504,30 L. R. A. 734, 52 Am. St. Rep. 496; and ordinarily evidence of specific acts of unchastity with other men is incompetent in cases like the present. Commonwealth v. Harris, 131 Mass. 336, and cases cited. But in the case at bar evidence of pregnancy and miscarriage had been admitted as a fact of the government's case, against the objection and exception of the defendant; it was evidence of probative force against the defendant and tended to corroborate her testimony. As it was competent for this purpose, it was proper for the defendant to meet it by being permitted to show that another than he was responsible for her condition. This evidence was admissible and it was error to exclude it. People v. Flaherty, 79 Hun, 48, 29 N. Y. Supp. 641, affirmed in 145 N. Y. 597, 40 N. E. 164;State v. Bebb, 125 Iowa, 494, 499, 101 N. W. 189;People v. Craig, 116 Mich. 388, 74 N. W. 528;State v. Danforth, 73 N. H. 215, 221, 60 Atl. 839,111 Am. St. Rep. 600,6 Ann. Cas. 557.

3. There was no error in excluding the question asked of Mrs. Hall, the mother of Agnes Hall, on cross-examination by the defendant, whether she instituted criminal proceedings against the defendant. Even if the fact were as claimed by the defendant, the ruling was within the discretion of the presiding judge.

4. The birth certificate of Agnes Hall which was admitted without exception, showed the date of her birth to have been October 6, 1905. Her mother testified that she had three children, that the youngest had died, and that Mary Hall was the eldest of the three children. The defendant offered the birth certificate of Mary, showing her birth to have occurred January 16, 1904, and that she was the second child of the father and mother of Agnes, and further offered to show by the attending physician at the birth of Mary, that the statements in Mary's birth certificate were given him by Mrs. Hall shortly after the birth of Mary. This evidence was excluded. Even if this certificate, which is not a domestic certificate, were admissible (see Derinza's Case, 229 Mass. 435,...