Glover v. Callahan

• Decision Date: 27 December 1937
• Citation: 12 N.E.2d 194,299 Mass. 55
• Parties: GLOVER v. CALLAHAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 55

12 N.E.2d 194

GLOVER

v.CALLAHAN.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 27, 1937.

Exceptions from Superior Court, Middlesex County; Fosdick, Judge.

Action of tort by Gulielma A. Glover, by next friend, against Cornelius J. Callahan. From a judgment on a verdict for plaintiff in the sum of $3,750, defendant saves exceptions.

Exceptions overruled.

K. A. Sanderson, of Boston, for plaintiff.

J. Burke, of Boston, for defendant.

DONAHUE, Justice.

This is an action of tort to recover damages for an alleged assault by the defendant upon the plaintiff, who at the time was about eight years old. Testimony of the plaintiff and of another girl of the same age, if believed, warranted the finding that the defendant assaulted the plaintiff with the intent carnally to know and abuse her. There was a verdict for the plaintiff. The defendant's bill of exceptions presents to this court exceptions to the admission of evidence, to the refusal of the trial judge to give requested rulings, and to a portion of the judge's instructions to the jury.

After the plaintiff had testified to acts of the defendant at the time of the alleged assault, she further testified on direct examination that, soon after the alleged assault, she told her mother and a police officer the same facts as to which she had earlier testified. There was evidence that the assault took place between 11.35 and 11.55 a.m. and that the plaintiff's statement to her mother and the police officer occurred between 12.45 and 1 p.m. on the same day. The plaintiff's mother and the police officer testified that after the police officer had talked alone with the plaintiff she then talked with them both and further testified as to what the plaintiff told them at that conversation. This in substance was the same as the testimony of the plaintiff respecting the acts of the defendant.

The defendant contends that the rule of evidence, which permits in a criminal prosecution for rape or for assault with intent to commit rape or for similar crimes the introduction of evidence of a complaint made by the alleged victim soon after the assault, is not applicable in a civil action brought to recover damages for such an assault. It was said in Gardner v. Kellogg, 23 Minn. 463, 466, which was an action to recover damages for an indecent assault, that the rule in question ‘has for its support a foundation equally as firm and reasonable in civil as in criminal actions.'

The applicability of the rule in civil cases brought to recover damages for such assaults is generally recognized. Valencia v. Milliken, 31 Cal.App. 533, 160 P. 1086;Wildeboer v. Peterson, 187 Iowa 1169, 1183, 175 N.W. 349;Totten v. Totten, 172 Mich. 565, 569, 138 N.W. 257;Bishop v. Liston, 112 Neb. 559, 565, 199 N.W. 825;Dean v. Raplee, 64 Hun 537, 19 N.Y.S. 463; Hopkinson v. Perdue, 8 Ont.L.Rep. 228, 234. In this Commonwealth ‘The rules which govern the admission of evidence apply with equal authority and force in criminal and civil proceedings.’ Commonwealth v. Abbott, 130 Mass. 472, 473. We see no reason why testimony, admissible against a defendant when being prosecuted for alleged criminal acts, should not be received at the trial of a civil action brought to recover damages for the consequences of those acts. The testimony as to complaints made by the plaintiff was properly admitted if it would have been admissible in a criminal prosecution based upon the same alleged acts of the defendant.

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. The courts are not in entire accord as to the grounds of admission of such testimony. See Wigmore, Evidence, 2d Ed., §§ 1134-1140, 1760, 1761.

In this Commonwealth the ground of admission is held to be the corroboration of the testimony of the complainant as a witness. Although ‘In general, you cannot corroborate the testimony of a witness by proof that he has said the same thing before, when not under oath,’ under an exception to this general rule, evidence of an earlier complaint is admissible in cases of this character, not ‘as part of the res gestae, or as evidence of the truth of the things alleged, or solely for the purpose of disproving consent, but for the more general purpose of confirming the testimony’ of the victim. ‘The test is whether, according to the principles of the exception, her having made the complaint tends to corroborate testimony given’ by her at the trial. Commonwealth v. Cleary, 172 Mass. 175, 176, 177, 51 N.E. 746.

In order that earlier statements of a witness be admissible to corroborate his testimony given on the stand, it is necessary that he should first in some way have been discredited as a witness. In the ordinary case the discredit must come through cross-examination of the witness or the admission of impeaching evidence through other sources. But where a female witness testifies as to a rape or similar assault upon her the mere absence of evidence of an earlier complaint discredits her. A legitimate argument against her credibility may be made solely on the basis of the absence of evidence of such a complaint. Commonwealth v. Rollo, 203 Mass. 354, 89 N.E. 556. The fact that she did not make a complaint ‘is proper to be considered on the question of the weight to be given her testimony.’ Commonwealth v. Piccerillo, 256 Mass. 487, 491, 152 N.E. 746, 747. Such a witness has the right to offer evidence explaining why an earlier complaint was not made, Commonwealth v. Colangelo, 256 Mass. 165, 152 N.E. 241, and her testimony may be discredited if she fails to give a satisfactory reason for the absence of such complaint.

Where, as in this Commonwealth, evidence as to such complaints is admitted for the purpose of corroborating the testimony of the complainant, the whole of the statement made by her, including the details, is admissible. Wigmore, Evidence (2d Ed.) s. 1138. The question whether such details should be admitted as well as the mere fact that a complaint was made, was recognized, but did not need to be decided in Commonwealth v. Cleary, 172 Mass. 175, 176, 51 N.E. 746. In Commonwealth v. Gangi, 243 Mass. 341, 344, 137 N.E. 643, it was held that ‘Evidence as to the complaint made by the...