Commonwealth v. Gangi

Decision Date04 January 1923
Citation137 N.E. 643,243 Mass. 341
PartiesCOMMONWEALTH v. GANGI.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

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

Carmelo Gangi was found guilty of rape, and he brings exceptions. Exceptions sustained.

The exceptions were to the admission in evidence of a bottle found near the place of the assault soon afterwards and said to contain ether, to the admission of testimony concerning the complaining witness' identification of defendant, to the refusal to strike out such evidence, and to the admission of testimony concerning the complaining witness' statements to her mother shortly after the assault. The complaining witness testified that defendant during the assault placed a rag smelling of ether over her mouth, and her mother testified that she smelled of ether when she arrived home.

Endicott P. Saltonstall, Dist. Atty., of Boston, and Raoul H. Beaudreau, Asst. Dist. Atty., of Marlboro, for the Commonwealth.

Edward W. Kenney, of Woburn, for defendant.

RUGG, C. J.

This is an indictment charging the defendant with rape.

[1] 1. Plainly there was no error in admitting evidence concerning the bottle containing ether found near the place of, and soon after, the alleged assault. The complainant and her mother both gave testimony as to the odor of ether following the assault.

[2] 2. Evidence as to the complaint made by the assaulted girl to her mother immediately succeeding the alleged crime was admissible. Commonwealth v. Cleary, 172 Mass. 175, 51 N. E. 746.

[3][4][5][6][7] 3. Witnesses were permitted to testify that, at the police station in the presence of the defendant, the complainant said that she was positive that the defendant was the man who assaulted her. This testimony was admitted on the ground that it did not then appear whether the defendant was under arrest or not at the time. The chief of police testified that the defendant was not under arrest at that time but was placed under arrest after the talk about identification was over. He also testified as to the identification of the defendant by the complainant, and that she became hysterical when she saw the defendant, and that the defendant, when brought into the presence of the complainant, started and changed color a good deal. The conduct of the defendant under these circumstances was admissible. There was no testimony that the defendant made any reply to the words of identification spoken by the complainant. The point is whether the words of the complainant in identifying him and his failure to speak were admissible. There was no error in admitting this evidence at the time because there was positive testimony that the defendant was not under arrest. If he was not under arrest, the evidence was competent.

Later the defendant testified in his own behalf as to the circumstances under which he came to the police station. If this testimonywas believed, he was under arrest. French v. Bancroft, 1 Metc. 502, 504;Mowrey v. Chase, 100 Mass. 79, 85;Simmons v. Richards, 171 Mass. 281, 50 N. E. 617. But the jury were not bound to accept his testimony as true. They might have disbelieved it entirely. They might have given credence to the statement of the chief of police. Commonwealth v. Russ, 232 Mass. 58, 70, 122 N. E. 176. If it had been indubitable that the defendant had been under arrest...

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36 cases
  • Globe Newspaper Co. v. Superior Court
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 26, 1980
    ...all or part of the trial were necessary to assure the availability of evidence of fresh complaint, see, e. g., Commonwealth v. Gangi, 243 Mass. 341, 344, 137 N.E. 643 (1923); W. B. Leach & P. J. Liacos, Massachusetts Evidence 133 (4th ed. 1967), the judge would be justified in ordering clos......
  • Com. v. Bonomi
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 31, 1957
    ...See Commonwealth v. Piper, 120 Mass. 185; Commonwealth v. Trefethen, 157 Mass. 180, 31 N.E. 961, 24 L.R.A. 235; Commonwealth v. Gangi, 243 Mass. 341, 345, 137 N.E. 643; Hall v. Shain, 291 Mass. 506, 197 N.E. 437. There was no error. Commonwealth v. Williams, 171 Mass. 461, 50 N.E. Assignmen......
  • Commonwealth v. Giacomazza
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 25, 1942
    ...62 N.E. 748;Commonwealth v. Retkovitz, 222 Mass. 245, 110 N.E. 293;Commonwealth v. Russ, 232 Mass. 58, 122 N.E. 176;Commonwealth v. Gangi, 243 Mass. 341, 137 N.E. 643. Captain Van Amburgh, a ballistic expert, testified that he made an examination of the bullet that was taken from the body o......
  • Commonwealth v. Green
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 13, 1939
    ...an accusation met by a complete denial is not an admission. Commonwealth v. Spiropoulos, 208 Mass. 71, 74, 94 N.E. 451;Commonwealth v. Gangi, 243 Mass. 341, 137 N.E. 643;Commonwealth v. Graham, 279 Mass. 466, 181 N.E. 506;Commonwealth v. Kosior, 280 Mass. 418, 422, 182 N.E. 852;Commonwealth......
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