Beers v. Jackman

103 Mass. 192

Opinion

Colt, J.

It would have been, perhaps, more according to the usual course, for the complainant to have introduced the letter of August 26 in reply to the defendant’s case, relying in the first instance upon positive testimony that the child was begotten in April following. The answer contained a denial of the complainant’s allegation, and a charge of conspiracy to defraud; and the order in which competent evidence, under the issue raised, should be introduced, was here in the discretion of the judge.

In proof of unlawful sexual intercourse, the adulterous disposition of the parties at the time may be shown. To this end, the antecedent and subsequent conduct and declarations of the parties, if it has a tendency to prove the fact, is admissible. It is a matter of common observation, that a criminal intimacy is usually of gradual development and when established is likely to continue between the parties. The act itself is the strongest evidence of the existence of the disposition; and it has been recently held that, for the purpose of proving it, an act of adultery at another time may be shown. Thayer v. Thayer, 101 Mass. 111. It had long been held that prior acts of familiarity were admissible to render it not improbable that the act might have occurred. Commonwealth v. Merriam, 14 Pick. 518.

The only limit to this description of evidence is, that it must be sufficiently near in point of time, and sufficiently significant in character, to afford an inference of the moral condition to be proved. And this limit must be fixed to a great extent by the discretion of the judge who tries the case. The facts stated in this bill of exceptions do not make it appear that the judge passed the limit, in admitting the letter in question. Boyle v. Burnett, 9 Gray, 251. Exceptions overruled.