State v. Tetrault
| Decision Date | 05 October 1915 |
| Citation | 95 A. 669 |
| Parties | STATE v. TETRAULT. |
| Court | New Hampshire Supreme Court |
Exceptions from Superior Court, Sullivan County.
Louis Tetrault was convicted of statutory rape, and he excepts. Exceptions overruled.
Frank O. Chellis, of Newport, and James A. Moynihan, of Manchester, for the State. Hurd & Kinney, of Claremont, for defendant.
The crime was alleged to have been committed upon a feebleminded girl under 16 years of age. She was an adopted child, and had been known to her adopted parents since she was supposed to be 3 years old. Subject to exception, they were permitted to state her age and the date of her birthday. The sources of their information were statements to them by her aunt (who was dead at the time of the trial), her appearance when they first knew her, and the time when she arrived at puberty. The two latter circumstances are of little consequence in this case, for the offense is alleged to have been committed less than 2 months before the prosecutrix's sixteenth birthday.
Ordinarily, any member of a family is permitted to testify to matters of family history, including, of course, facts as to age or date of birth. It is not necessary to determine whether the rule is made inapplicable by the fact that the person whose age was in question did not become a member of the family to which the witness belonged until 3 years after the event in her history to which their testimony related took place. The source of information was fully disclosed by the evidence. It appeared that the witnesses fixed the date of the prosecutrix's birth as August 8, 1888, because they had been told that was the fact by her aunt. The whole substance of the evidence as to the date was that the aunt said it was as stated. The aunt being dead, her statement was properly received. Emerson v. White, 29 N. H. 482; Waldron v. Tuttle, 4 N. H. 371, 378. If there was technical error in the presentation of this evidence, there was none in substance. The jury must have understood that the adoptive parents neither had nor claimed to have any personal knowledge of the fact in question, and that they based their belief upon the competent declaration of the aunt.
The theories upon which testimony as to pedigree is admitted are not wholly harmonious. By most of them the positive statement of the fact in question by these adoptive parents would be received as evidence. 2 Wig. Ev. § 1489. Whether these precedents should be followed, or whether the stricter limitation sometimes insisted upon should be applied, the result here would be the same.
The prosecutrix was permitted to testify, subject to the defendant's exception. The question of her mental capacity was one of fact, to be decided by the presiding justice. Day v. Day, 56 N. H. 316. The conclusion that she was of sufficient capacity was based upon evidence warranting the finding, and therefore is not open to revision here. State v. Sawtelle, 66 N. H. 488, 502, 32 Atl. 831.
The admission of her testimony as to her own age was in accordance with...
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State v. Eldridge
...A.2d 146 (1996) ; Pierce v. State, 13 N.H. 536, 551 (1843), without considering the legal effects of its verdict, see State v. Tetrault, 78 N.H. 14, 16, 95 A. 669 (1915) ("The jury [has] no duty to perform in the assessment of the penalty and therefore no occasion to know what it might be."......
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State v. Brunette
...the victim's date of birth was November 7, 1968, but she testified instead from her purported personal knowledge. Cf. State v. Tetrault, 78 N.H. 14, 95 A. 669 (1915) (court never reached issue whether hearsay exception for matters of family history was made inapplicable by fact of child's a......
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State v. Thorp
...State v. Hale, 85 N. H. 403, 412, 160 A. 95. Since the jury had a "duty to perform in the assessment of the penalty" (State v. Tetrault, 78 N. H. 14, 16, 95 A. 669, 670, Ann. Gas. 1918B, 425), it was perfectly proper for the Attorney General to read to them the statute prescribing that The ......
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State v. Thomas
...(Kans.) 201 P. 68; the rule is that evidence of other acts of intercourse with prosecutrix is admissible, 22 R. C. L. 1205; State v. Tetrault, 95 A. 669; Williams State, 246 S.W. 503; Instruction No. 9 is supported by the rule in State v. Tobin, 31 Wyo. 355; rulings of trial court refusing ......