Parker v. Dudley

Devens, J. The respondent had offered evidence tending to show that one Parker was the father of the child, and also that the complainant had sexual intercourse with one Matthews in July, 1873, in which month the child was begotten. In confirmation of this evidence, he desired to show that she had said in July, 1872, that she was engaged to Parker, and also that in 1872 she was friendly and intimate with Matthews, and that he was repeatedly with her in her bedroom in the night time, they being then fellow servants. So far as this evidence tended to show an engagement to Parker or intimacy with Matthews in 1872, which the complainant had denied upon her cross-examination, it was an attempt to contradict her upon an immaterial question, and rightly rejected. And even if it could be inferred,- (which inference it would be difficult to make in favor of the excepting party, who should state all facts necessary to sustain his exceptions,) that this evidence further tended to show that Matthews was in her bedroom at such times and under such circumstances as to excite well grounded suspicion and to indicate improper intimacy., which alone would give it (any significance, it was so remote in point of time that it might properly have been rejected by the presiding judge. Prior acts of familiarity and criminal intercourse between the parties may be shown where such intercourse at a particular time is charged. Thayer v. Thayer, 101 Mass. 111. But as evidence of this description does not directly tend to prove the act as charged, but only indirectly by showing the disposition of the parties and the character of the relation between them, it should refer to a period so near in point of time as to leave it fairly to be inferred that such disposition and relation continued. The reception of such evidence must, therefore, be largely limited by the discretion of the judge who tries the cause, and we cannot say that, in rejecting evidence of this nature relating to a time one year before, any error was made. 605 Nor could the fact that the complainant, without objection, had been permitted to testify that she had never had sexual intercourse with any one other than the respondent entitle the respondent to contradict this by proof of acts of such intercourse with persons other than himself at a time so long previously that the child could not then have been begotten. In a proceeding of this nature, the character of the complainant for chastity is not put in issue, and such evidence is irrelevant. Phillips v. Hoyle, 4 Gray, 568. Eddy v. Gray, 4 Allen, 435. By failing to object to evidence on behalf of the complainant which was incompetent, the respondent could not as of right claim to contradict it. 1 Greenl. Ev. § 449. Commonwealth v. Fitzgerald, 2 Allen, 297. Whether, if he had been permitted to contradict it, the party first availing himself of such evidence could have objected thereto, might present a different question. Brown v. Perkins, 1 Allen, 89. Exceptions overruled.