Commonwealth v. Tatisos

• Decision Date: 07 April 1921
• Citation: 130 N.E. 495,238 Mass. 322
• Parties: COMMONWEALTH v. TATISOS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 322

130 N.E. 495

COMMONWEALTH

v.TATISOS.

Supreme Judicial Court of Massachusetts, Middlesex.

April 7, 1921.

Exceptions from Superior Criminal Court, Middlesex County; Louis S. Cox, Judge.

Fortis Tatisos was convicted of assault with intent to commit rape on a child of five years and ten months, and he excepts.Exceptions overruled.

The commonwealth offered as a witness the child on whom the attempt charged was, just past six years of age at time of trial.Before she was permitted to testify, on request of counsel for the defendant, in the absense of the jury, she was examined by the court.Her complete examination and statement thereon is as follows (September 15, 1920):

By the Court: I am going to ask you some more questions.You don't mind, do you?A.No (shakes her head).

Q.What is your name?A. Mabel Stafford.

Q.How old are you?A.Six.

Q.Where do you live?A. 10 Bolton place.

Q.What city?A. Lowell.

Q.Do you go to school?A.No; I don't go to school.

Q.What do you do?A.Stay in the house.

Q.I thought you went to the Sisters' school.Do you?A.Yes (shakes her head).

Q.Do you go the Sisters' school?A.Yes.

Q.You used to go to the Sisters' school, is that it?A.Yes.

Q.Do you go to Sunday school?A.No.

Q.To church?A.Yes.

The Court: I want to ask you a little more about the same thing I asked you before this morning.Do you know what happens to anybody when they tell a lie?A.Yes.

Q.What is it?A.Lick them.

Q.Who does the licking?A.The mother.

Q.Anything else happen to them?A.Whipping.

Q.Anything else besides that?A.No. (shakes her head).

Q.Do you know why you are here to-day?A.No.

Q.Do you know what an oath is?A.Mouth?

Q.No, oath.A.No (shakes her head).

Q.You told me that all the good people went to heaven this morning, didn't you?A.Yes (shakes her head).

Q.Where do the bad people go?A.Down to the ground.

Q.If anybody asked you, told you to tell the truth, and you said that you would, what would you do?A.I would do nothing.

Q.Would you tell the truth or would you tell a wrong story?A.Tell the truth.

Q.Suppose you didn't tell the truth; suppose you told a wrong story; what then?A.Get a licking.

Q.Is that all?A.Yes.

The Court: Is it right to tell lies?A.No (shakes her head).

Q.Why not‘ A.Don't know.

The Court: How long have you gone to the Sisters' school?A.I don't know.

Q.What did they tell you there when you went?Did you have anything about the Catechism?Ever hear about that?A.Yes.

Q.What is it?Do you know any of it?A.No (shakes her head).

Q.Did you ever hear of God?A.No.

The Court: As it stands, Mr. District Attorney, I cannot bring myself to the conclusion that this girl can qualify as a witness.I appreciate the seriousness of the charge against the defendant, not only in so far as he is concerned, but the community as a whole.It appears that this little girl has been at some time to the Sisters' school, and I should assume that she must have had some sort of instruction.She appears to be bright and intelligent, and her answers are direct, and it does not appear, so far as I can see, that she is answering anything as a result of any instruction.The girl seems to be intelligent, and by that I mean she has intellect that seems to be responsive and I should be inclined not to make my finding upon her story at this time if it should seem worth while to give her some instruction.That, however, is a matter the result of which cannot be foreseen, and I will leave it entirely with you.I will make my ruling now or later.

With the approval of the judge, the trial of the case was suspended until the next day, the child in the meantime talking with the parish priest of her mother's religious faith.On the next day the child was further interrogated by the judge and answered as follows:

Mr. Tufts: I should not think of giving the child any instruction myself.If it meets with your honor's approval.I shall make the suggestion to the parent that the parish priest talk with her.I appreciate the seriousness of it, yet I think that there are very few people who come into court and take an oath to tell the truth who really know what the clerk has said to them, or who can really understand what they are doing or saying.Of course it is not surprising that a young child has failed to do what you might expect perhaps of older people, and I think perhaps your honor is following the wise and safe course for the preservation of the rights of all.

The Court: Of course in this case the child cannot be punished if she gave false testimony.That question has been raised heretofore and the Supreme Court says that does not make any difference.The contention is whether the child understands and appreciates the significance and solemnity of an oath, and the course suggested has been followed heretofore in this court.

Mr. Tufts: Having your suggestion in mind, I will proceed with the case, if your honor please.

Mr. Tierney: Perhaps it is not necessary for me to say it, but if the child is found by your honor at this time to be in that condition that you would not admit her as a witness.I would not want to have your honor feel that I would accept any testimony to-morrow that was anything to the contrary.By that time her recent attention may have perhaps taken root.

The Court: Do not think that you will lose any rights by the lapse of a few minutes on the clock.You won't.I will save your rights at any time, and I suppose this will be the place.

On September 16, 1920, occurred the examination following:

The Court: How are you this morning?A.Fine.

Q.Did the priest talk to you last night?A.Some.

Q.Where did you see him, at your house, or did you go to his house?A.At the priest's house.

Q.Do you know now what happens to little girls when they tell lies?A.God punishes them.

Q.Who?God.

The Court: Well, I am inclined to think, Mr. Tufts, that we shall have to proceed with the testimony.

Mr. Tierney: Would your honor permit me to ask the child any questions?

The Court: Yes.

The defendant's counsel then interrogated and the child replied as follows:

Mr. Tierney: How long were you at the priest's house last night?A.Went out a little while.

Q.You didn't know anything about God until last night?A.No (shakes her head).

Q.Did the police officer to with you?A.Yes.

Q.To the priest's house?A.Yes.

Q.Who is God?A.God is a creator.

Q.Do you know what you came down here to court for?A.No, sir.

Q.You don't know what it means when you hold up your right hand in court?You don't know what that means, do you?A.No (shakes her head).

Q.You don't know what an oath is?A. I. don't know what it is.

Q.You don't know-how does God punish anybody?A.Sends them down to the ground.

Q.Sends them in the ground?A.Down in the ground.

Q.Where is God?A.God is up in heaven.

Q.Who did you talk with besides the priest?A.What?

Q.Who did you talk with about God besides the priest?A.Mr. Petrie.

Q.Mr. Petrie, he talked with you about God?A.Yes.

Q.And who else?A.I don't know who else.

Q.Was it last night after you left the courthouse that you went to see the priest?A.Yes.

Q.You were with-how long were you with the priest?A.Just a little while.

Q.You don't know how long?A.No; I don't know how long.

Q.Now if you came here in court and said something that wasn't so-- A.It would be a lie.

The judge thereupon ruled on the evidence that the child was a competent witness and permitted her to testify, subject to an exception by the defendant.The defendant was found guilty, and alleged exceptions.Nathan A. Tufts, Dist. Atty., of Waltham, and Raoul H. Beaudreau.Asst. Dist. Atty., of Marlboro, for the Commonwealth.

Edward J. Tierney, of Lowell, for defendant.

JENNEY, J.

In the trial of an indictment for an assult with intent to commit rape upon Caterine M. Stafford, a child about five years and ten months old at the time of the alleged assult, and ‘just past’ six years at the time of the trial, the child was permitted to give material evidence in behalf of the commonwealth.The sole exception is to her competency as a witness.

It is clear that the tender years of the child did not disqualify her.While age is of importance, it is not the test.The child might have been much older and still have been unqualified to give testimony.Her capacity to observe, remember and give expression to that which she had seen, heard, or experienced was the crucial consideration.

[2] Much which cannot be reproduced by the printed words depends on the child's appearance and manner.It is seldom that the discretion of the trial judge can be revised; its exercise must have been clearly erroneous to justify such action.This is becuase the question for decision is almost always one of fact and hence not reviewable.Commonwealth v. Hutchinson, 10 Mass. 225;Commonwealth v. Robinson, 165 Mass. 426, 43 N. E. 121;Commonwealth v. Reagan, 175 Mass. 335, 56 N. E. 577,78 Am. St. Rep. 496;Commonwealth v. Ramage, 177 Mass. 349, 58 N. E. 1078;Commonwealth v. Marshall, 211 Mass. 86, 97 N. E. 632;Commonwealth v. Teregno, 234 Mass. 56, 124 N. E. 889;Wheeler v. United States, 159 U. S. 523, 16 Sup. Ct. 93, 40 L. Ed. 244.

The defendant urges that the witness did not understand the nature of the required oath and for that reason was improperly permitted to testify.As to this no precise line can be defined, and cases placed on one side or the other.The ultimate test cannot be the amount of moral training and religious understanding, but must depend upon the existence of understanding sufficient...