Ray v. Coffin

123 Mass. 365, 1877 Mass. LEXIS 293

• Court: Massachusetts Supreme Judicial Court
• Decided: November 27, 1877
• Status: Published

Opinion

Endicott, J.

When a woman makes a complaint against a man, charging him with being the father of a bastard child, she may be a witness in support of her complaint; and if, in time of her travail, she accuses the same man of being the father of the child of which she is about to be delivered, and continues constant in her accusation, “ the fact of such accusation in time of travail may be put in evidence upon trial to corroborate her testimony.” Gen. Sts. c. 72, § 8. It is an accusation thus made and continued which may be put in evidence. And it may be proved by ber own testimony or that of other witnesses. Reea v Haskins, 116 Mass. 198. But, if no accusation in time of travail is made, there can be no evidence that she continued to make it. In that case the trial must proceed, as if there was no such provision of the statute by which her testimony may be corroborated. And she cannot be allowed to prove that she has been constant in an accusation which she never made.

This distinction was not observed at the trial. It appeared that the plaintiff did not in time of travail accuse the defendant; and she and her mother were permitted to testify that she had never accused any man but the defendant of being the father.

The exception to the admission of this evidence is well taken, and, as there must be a new trial, we are not required to pass upon the alleged defect in the supplemental complaint, which may be cured by amendment, if necessary.

Exceptions sustained.