Commonwealth v. Ellis

• Citation: 67 N.E.2d 234,319 Mass. 627
• Parties: COMMONWEALTH v. ELLIS.
• Decision Date: 29 May 1946
• Court: United States State Supreme Judicial Court of Massachusetts

319 Mass. 627

67 N.E.2d 234

COMMONWEALTH

v.ELLIS.

Supreme Judicial Court of Massachusetts, Suffolk.

May 29, 1946.

Exceptions from Superior Court, Suffolk County; Higgins, Judge.

Alexander Ellis was convicted for unlawfully and carnally knowing and abusing a female child under 16 and he brings exceptions.

Exceptions sustained.

Before FIELD, C. J., and LUMMUS, DOLAN, RONAN, and WILKINS, JJ.

F. J. Hickey, Asst. Dist. Atty., of Boston, for Commonwealth.

G. R. Farnum, of Boston, and L. J. Gillis, of Revere, for defendant.

WILKINS, Justice.

The defendant was indicted in ten counts for unlawfully and carnally knowing and abusing a female child under sixteen. G.L.(Ter.Ed.) c. 265, § 23. He waived his right to trial by jury and was tried and found guilty.

1. Certain requests for rulings designed to raise the question of law whether the evidence was sufficient to warrant a conviction were denied subject to the defendant's exception. We omit detailed recital of the evidence. The defendant concedes, as he necessarily must, that the testimony of the complainant, if believed, was proof of guilt. His contention is that the burden on the Commonwealth of proving guilt beyond a reasonable doubt was not sustained, because the uncorroborated testimony of the complainant was ‘replete with obvious and inherent improbabilities, contradicted in material particulars by her testimony in the lower court, and overwhelmingly discredited by a cloud of reputable witnesses for the defence.’ We think, however, that the case presented the usual question of credibility of witnesses, and that the judge properly could, as he did, find the defendant guilty. These exceptions are overruled.

2. The defendant excepted to the admission in evidence of statements of the complainant made to her mother and later to the police on March 28, 1944. Nine offences were charged to have been committed on various dates in January, February, and March, 1944. The statements in question were each admitted as a fresh complaint solely with reference to the tenth offense which was alleged to have occurred between 3:10 p. m. and 3:45 p. m. on March 28. The complainant, who testified in great detail as to the occurrences on the various dates, testified that on March 28 at first she told her mother she had to stay after school to help the teacher, and then said she was in the defendant's tailor shop and the defendant ‘did things to her.’ With reference to the same conversation the mother testified that she talked to the complainant after her return home at 4:30 p. m. and asked what the complainant had been doing in the tailor shop; that at first the complainant said nothing, but then started to cry and said that he ‘was doing bad things to her.’ A police officer, called as a witness by the Commonwealth, testified that at 8 p. m. on March 28 he talked with the complainant at the police station in the presence of her mother and two other police officers; and that the complainant's testimony, which he had heard, did not differ in any respect from what she had told him on March 28. ‘Testimony that an alleged victim of rape or similar outrage made a voluntary complaint of the fact of the assault after the event is generally held admissible in a criminal prosecution. * * * In this Commonwealth the ground of admission is held to be the corroboration of the testimony of the complainant as a witness. * * * [The] whole of the statement made by her, including the details, is admissible.’ Glover v. Callahan, 299 Mass. 55, 57, 58, 12 N.E.2d 194, 195;Commonwealth v. Cleary, 172 Mass. 175, 176, 177, 51 N.E. 746;Commonwealth v. Gangi, 243 Mass. 341, 344, 137 N.E. 643. See Wigmore, Evidence, 3d Ed., § 1138. It cannot be said as matter of law that the complaints in the case at bar were made too late. Commonwealth v. Cleary, supra, 172 Mass. 177, 51 N.E. 746;Commonwealth v. Rollo, 203 Mass. 354, 89 N.E. 556. See Commonwealth v. Piccerillo, 256 Mass. 487, 490, 491, 152 N.E. 746. See also Wharton, Criminal Evidence, 11th Ed., § 311. The statements did not cease to be voluntary merely because they may have been given, in part at least, in response to questions, which were not shown to be of a suggestive or leading character. State v. Pearson, 49 R.I. 386, 388, 143 A. 413; King v. Osborne, [1905] 1 K.B. 551; King v. Norcott, [1917] 1 K.B. 347. It is not a valid objection to admissibility that the defendant was also charged with the earlier commission of similar offences. There was no error in the admission of this testimony.

3. Subject to the defendant's exception, the same police officer was permitted to testify that on the evening of March 28 in the presence of the defendant, who was at the police station but not under arrest, the complainant retold the same story which she had previously related to the police...