State v. Fischer

238 A.2d 210, 1968 Me. LEXIS 187
CourtSupreme Judicial Court of Maine
DecidedFebruary 16, 1968
StatusPublished
Cited by11 cases

This text of 238 A.2d 210 (State v. Fischer) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fischer, 238 A.2d 210, 1968 Me. LEXIS 187 (Me. 1968).

Opinions

WEATHERBEE, Justice.

On appeal.

On January 4, 1967, the Grand Jury for the County of Somerset returned three indictments against the defendant. Two of them were charges of taking indecent liberties with the sexual parts of two of his granddaughters aged ten and eight; the third was a charge of sodomy involving his nine year old grandson. The offenses were alleged to have occurred on or about August 2, 1966. The three charges were [211]*211tried together at the May Term, 1967, and the jury found him guilty of each charge. The three convictions are before us on appeal.

The State presented as witnesses the three children and their mother, the daughter-in-law of the defendant. The age of the defendant was stipulated to be 57 at the time of trial. The testimony revealed that the two families lived in small houses some one hundred feet apart in a rural area. There were five children in the family of the younger Fischers and the mother and father were both employed away from the home at the beginning of the period we are considering. The defendant was unemployed and was taking daytime care of Raymond, aged 12, and Dale, both sons of other children of the defendant, while his wife was working away from the home. Some of the criminal acts complained of were described as taking place in the defendant’s house while the children were visiting him during the daytime. Some were said to have occurred in the children’s home while their parents were away. Each child described the acts concerning that child and each girl testified that she witnessed the events involving the other. The boy described observing one of the acts which the State charges took place with the younger girl. The mother testified to complaints which were made to her by each of the children concerning the grandfather’s actions.

The defendant did not take the stand but offered as witnesses Raymond, the defendant’s wife, Ruth Fischer, and several people who testified that his reputation in the community for morality was good. Raymond said that none of these criminal acts had occurred in his presence, which disputed the assertions of the other children. The defendant’s wife testified that no complaints had been made to her until December 5th when the younger Mrs. Fischer took the children to the sheriff which resulted in the defendant’s arrest. She agreed that her daughter-in-law had told her that the children were not to visit the defendant’s house as long ago as March of 1966 but ascribed this to an increasing estrangement which had developed in the family soon after the elder Fischers had moved into the neighborhood.

The cases were consolidated for appeal and there were three points on appeal which will be considered in order.

Point No. 1. The defendant contends that the court erred in admitting the testimony of the nine-year-old boy.

Before testimony was heard from the three complaining children the justice conducted a lengthy examination of each child to ascertain that child’s competence to testify. The justice was thorough, patient and resourceful in testing the understanding of each child. This questioning disclosed that this nine-year-old boy, although still in the first grade in school, was able to give intelligent answers to the justice’s questions concerning his home, family and school and his personal out of school activities. He demonstrated an understanding of the distinction between truth and falsehood and the significance of the oath. He showed ability to comprehend the questions asked him and to give responsive answers. Although his status in school indicated a mentally retarded condition, the record of this preliminary examination supports the justice’s decision that the child was competent to testify.

“The question of the competency of a child to testify is addressed largely to the discretion of the presiding Justice, but it is judicial discretion. It must not be an arbitrary decision. It must be based not only on the appearance of the child, but it also must be based on what answers the child makes to show that he, or she is, qualified to testify. The proposed child witness should know the difference between truth and falsehood, and apparently must be able to receive accurate impressions of facts, and be able to relate truly the impressions received. The child witness should have sufficient capacity to un[212]*212derstand, in some measure, the obligation of an oath; or to realize that it is wrong to falsify, and that if he does tell an untruth that he is likely to be punished.” State of Maine v. Ranger, 149 Me. 52, 56, 98 A.2d 652, 654 (1953)

This test was met. The preliminary determination by the justice that the child had sufficient capabilities to understand and appreciate all the obligations of an oath to qualify him to testify was not an abuse of discretion. Under our practice the responsibility for evaluating the weight to be given to the child’s testimony then became the jury’s.

Point No. 2. “The verdict was against the weight of the evidence.”

The thrust of the defendant’s argument here relates to a certain contradiction in the testimony of the children. It is imperative that this testimony should be examined with the greatest of care because of the very nature of the offense charged. We have many times before recognized the ease with which an untruthful child can bring a wholly baseless charge against a man and the enormous difficulties of defending against such a charge. State v. Newcomb, 146 Me. 173, 78 A.2d 787 (1951). It is self-evident, too, that such offenses are seldom committed in the presence of adult witnesses and that the necessity of enforcing the law to protect children frequently requires reliance on the testimony of a child uncorroborated or with little corroboration. In such cases, however, the testimony of the child must be scrutinized with great care.

We have examined the children’s accounts of these incidents carefully. The testimony of the two girls was not entirely free from discrepancies. After they had complained to their mother concerning the defendant’s conduct an encounter resulted between the girls and their grandmother, Ruth, in which they had insisted to Ruth that her husband, the defendant, had molested them. The grandmother had said she did not believe their accusation and during the doubtless stormy conversation the children had made statements about the conduct of another member of the family, the significance of which statements is not entirely clear. The older girl’s testimony on cross-examination as to this leaves us uncertain as to whether she means that she told Ruth that L— had also been molesting her but that it was a lie or that she was insisting to Ruth that any accusation that L— had molested her was a lie. Her testimony was that L— had not molested her and her own words on this issue were enigmatical.

“Yes, we told Ruth it was a lie about L — . She wouldn’t believe us about Joe.”

The younger girl’s testimony appears to be unequivocal in that she said that L— and his friend, as well as the defendant, had molested her and that she had told Ruth this.

“Q And isn’t the story that you told to Ruth and Joe about L— the same story that you are now telling here in Court about Joe?
A Yes.
Q Isn’t it the same ?
A Yes.

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State v. Fischer
238 A.2d 210 (Supreme Judicial Court of Maine, 1968)

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238 A.2d 210, 1968 Me. LEXIS 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fischer-me-1968.