Commonwealth v. Moore

20 Mass. 194

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1825
• Status: Published

Opinion

Wilde J.

delivered the opinion of the Court. The evidence offered by the defendant below, to impeach the credit of the principal witness, was, we think, properly rejected. Evidence to impugn the character of a witness is commonly to be confined to his general character 'for veracity. In the case of Commonwealth v. Murphy, 14 Mass. R. 387, the inquiry was further extended ;¹ but public justice does not require a still greater relaxation of the general rule. Besides, the evidence rejected was immaterial, the witness’s character for chastity being sufficiently impeached by her own confeson ; so that if the evidence had been admitted, it would have made no difference in the verdict. Rex v. Teal, 11 East, 311. The evidence however was clearly inadmissible.

Another error assigned is, that the complainant, being a minor, nevertheless appeared by attorney ; but the fact that she was a minor does not appear, and is not to be inferred from her pleading by guardian, because a guardian might have been appointed for some other cause besides minority.²

Nor is it error that the complaint does not conclude convra formam statuti.3 This was not a prosecution for a penalty, but one of a peculiar character ;⁴ and it is sufficient that all the requisitions of the statute, as to the form of the proceedings, have been complied with. The accusation, examination and complaint, are all in common form, and such as have been sanctioned by long established practice.

As to the supposed discontinuance of the suit, we are of opinion that it was competent for the Court to order the continuances to be entered, and that the proceedings in this respect are legal and regular. The claim of the defendant below to remove the cause, as by appeal, into this Court, and the proceedings thereon, were a nullity. When this Court refused to take congizance of the action, it became the duty of the Court below to enter judgment.5

But it is objected, that the process could not be brought forward, and the continuances duly made, without notice to the defendant. It does not however appear by the record that notice was not given ; and in favor of a judgment it is to be presumed that the proceedings were regular, nothing to the contrary appearing on the record. It is not necessary that there should be any record of the notice.

Therefore, as no error appears on the record, the proceed ‘ngs must be affirmed.

1 2 Stark. Ev. (late ed.) 216, n. 1. A witness may be impeached by show ing that he was intoxicated at the time the events occurred to which he is called to testify. Tuttle v. Russell, 2 Day, 201. General character fcr drunkenness is not admissible. Alter, as to the fact. Brindle v. M‘llvaine, 10 Serg. & Rawle, 282; Roscoe on Crim. Evidence, 135, 136.

Neither is the complainant bound to answer the question, whether she has had intercourse with another man, who might have been the father of the child. Tilson v. Bowley, 8 Greenl. 163.

2 But if an infant appear in person and not by guardian or prochein ami, it is error in fact. Castledine v. Mundy, 1 Nev. & Man. 635; S. C. 4 Barn. & Adol. 90.

3 See Reed v. Northfield, 13 Pick. 94. Quœre, whether the words 11 contra formam statuti ,” can be supplied by any other words of equivalent import. Barter v. Martin, 5 Greenl. R. 76; M'Keon v. Caherty, 1 Hall 300; Thistlewood v. Crucroft, 1 Maule & Sel. 500. But see Att.- General v. Rattenburg, 9 Price, 397; Commonwealth v. Stockbridge, 11 Mass. R. 279; Commonwealth v. Caldwell, 14 Mass. R. 330.

The omission of the words u contra formam statutiwhen proper to be inserted, is fatal even after verdict. Lee v. Clarke, 2 East, 333; Myddelton v. Wynn, Willes. 599; Thistlewood v. Cracroft, ubi supra; Welles v. Iggulden, 3 Barn. & Cressw. 186.

4 A complaint by a woman under the bastardy act, (St. 1785, c. 66; Revised Stat. c. 49;) accusing a man of being the father of her bastard child, though *n some respects in the form of a criminal prosecution, is in substance and fleet a civil suit. Wilbur v. Crane 13 Pick. 284.

See Howe’s Bract. 400.