State v. Bragg.

• Decision Date: 05 December 1944
• Citation: 40 A.2d 1
• Parties: STATE v. BRAGG.
• Court: Maine Supreme Court

40 A.2d 1

STATE

v.BRAGG.

Supreme Judicial Court of Maine.

Dec. 5, 1944.

Exceptions from Superior Court, Oxford County.

George Bragg was convicted of unlawfully and carnally knowing and abusing a female child, and he appeals and reserves exceptions.

Appeal dismissed, motion for a new trial denied, exceptions overruled and judgment for the State.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, MURCHIE, and CHAPMAN, JJ.

Theodore Gonya, Co. Atty., of Rumford, for the State.

Robert T. Smith, of South Paris, and Benjamin L. Berman, of Lewiston, for respondent.

STURGIS, Chief Justice.

The respondent was convicted in the court below of unlawfully and carnally knowing and abusing a female child under fourteen years of age contrary to R. S.1930, Chap. 129, Sec. 16 and his appeal and exceptions reserved are before this Court.

Appeal.

When the prosecutrix, a little girl of eight years, returned on the morning of June 17, 1943, from a visit to her grandparents she complained to her mother and father and others that she had been carnally abused on her way home, and medical examinations confirmed her story. At the trial, identifying the respondent with whom she was well acquainted, as her assailant, she described what had taken place, and while no one saw the attack, important parts of her testimony were corroborated by facts and circumstances related by persons who were in the vicinity. Although the respondent protested his innocence, we are convinced that the jury were warranted in believing beyond a reasonable doubt and finding that he was guilty of the charge laid against him in the indictment.

The respondent, through counsel, however, argues that regardless of whether on the evidence the verdict was right the appeal should be sustained for errors in rulings of law and improper comments by the trial judge. This contention does not require extended discussion. An appeal may be sustained in a criminal case for errors of law by the court to which exceptions are not reserved and injustice would otherwise inevitably result. State v. Wright, 128 Me. 404, 148. A. 141. And a new trial may be granted for prejudicial remarks by the court outside rulings in matters of law. State v. Carter, 121 Me. 116, 115 A. 820. Here, however, the alleged errors of law apparently relied upon are presented in exceptions perfected and their review lies there. And no objectionable comments by the trial judge are found in the record.

Exceptions 1 and 2.

These exceptions, it is conceded, are directed to what are characterized as leading questions propounded to the prosecutrix by the county attorney. If leading, which need not here be decided, it was within the sound discretion of the trial judge to allow such questions to this witness in the progress of her examination in chief and exceptions do not lie to the admission of her answers. State v. Lull, 37 Me. 246; Blanchard v. Hodgkins, 62 Me. 119; Harriman v. Sanger, 67 Me. 442.

Exceptions 3 and 4.

In the examination of the parents of the ravished child concerning her complaints the mother was interrogated as follows:

“Q. Kindly answer this next question, yes or no, if you will. When they brought her home did she make any complaint to you that she had been carnally abused that morning? A. Yes.”

The father's testimony in its material parts reads:

“Q. When you saw her at Herman Ridlon's, did she make a complaint to you that she had been carnally abused that forenoon? A. Yes.”

In oral argument the fault found by counsel for the respondent is that in allowing the witnesses to testify that the child made complaints that she had been carnally abused, not only the complaints but their details, were allowed to go to the jury. It is, of course, well settled that in the trial of one indicted for rape, if the prosecutrix takes the stand her testimony may be corroborated by proof that she made a complaint through the testimony of the person to whom it was made but the details of the complaint are not admissible unless her testimony has been impeached, or the complaint is within the rule of res gestae. State v. King, 123 Me. 256, 122 A. 578. But it is uniformly held that this rule is not violated if not more is admitted than is sufficient to show the nature of the complaint. State v. Powers, 181 Iowa 452, 164 N.W. 856; Com. v. Cleary, 172 Mass. 175, 51 N.E. 746; Blake v. State, 157 Md. 75, 145 A. 185; State v. Dawson, 88 S.C. 225, 70 S.E. 721; 52 Corpus Juris, 1067, n. 92, and cases cited. If context and reference disclose the subject matter of a complaint made in a rape case further description is unnecessary. State v. Mulkern, 85 Me. 106, 107, 26 A. 1017. Here the mere recital that complaints were made would have been unintelligible and a disclosure of their nature was necessary. We think the words carnal abuse only served that purpose and their use was unobjectionable.

No more convincing is the contention that the oft repeated framing of the questions relating to the prosecutrix's complaints, in the manner and form submitted, was calculated to prejudice the jury against the respondent. The questions were reframed and repeated because of objections by counsel for the defense, as finally submitted were admissible in form and substance, and the evidence was material to the issues. There is no ground for complaint here.

Exceptions 5, 6 and 7.

As this case was presented the main and controlling question was whether the testimony of the prosecutrix was true or false and it was the duty of the trial judge to so instruct the jury. State v. Clair, 84 Me. 248, 251, 24 A. 843. And the suggestion, but not direction, that the jury give this question first consideration could not have done more than encourage intelligent and orderly deliberation and point the way to...