Commonwealth v. Hollis

Allen, J. The defendant contends that there was no evidence, or at any rate no sufficient evidence, to sustain the material allegations of the indictment. 1. As to carnal knowledge. The evidence tended to show that the defendant and the girl had been in bed together, undressed, early in the morning, and the physical condition of the girl tended to show carnal knowledge. Under ordinary circumstances, such evidence would be sufficient, and it was for the jury to determine how far the inference of guilt was weakened by the other facts relied on. 2. As to the age of the girl. Through inadvertence, perhaps, or for some other reason, she was not asked how old she was. Her testimony on this point would have been competent. Commonwealth v. Phillips, 162 Mass. 504. It was also competent for the jury to consider her appearance in determining her age. It may have been quite obvious that she was under sixteen. Commonwealth v. Emmons, 98 Mass. 6. Keith v. New Haven & Northampton Railroad, 140 Mass. 175, 181. Commonwealth v. Stevens, 153 Mass. 421, 423. Commonwealth v. Phillips, 162 [436] Mass. 504. See also People v. New York County Justices, 10 Hun, 224. The .certificate was competent. Pub. Sts. c. 32, § 11. The only objection urged against it is that there was nothing to identify the girl described in the indictment with the girl described in the certificate. But the girl testified to her name in full, and this corresponded with the certificate. She also said that her home was in Newburyport, and the certificate showed that the girl therein described was born in Newburyport. These coincidences, with the inference of age which might be drawn from her appearance, were sufficient to warrant a finding of identity. 3. The defendant further contends that the whole evidence was too slight and inconclusive to warrant a conviction, and that for this reason the case ought to have been withdrawn from the jury; relying on People v. Ledwon, 153 N. Y. 10. Where an essential element in an offence is unsupported by evidence, no doubt this course should be adopted. Commonwealth v. Merrill, 14 Gray, 415. But where competent evidence has been introduced in support of all the material allegations of an indictment, the weight and sufficiency of such evidence aré ordinarily for the jury, in the first instance. They may also be further considered by the .court on a motion for a new trial, but ordinarily cannot be considered anew on a bill of exceptions. Commonwealth v. Morris, 1 Cush. 391. Commonwealth v. Gillon, 2 Allen, 505. Commonwealth v. Hughes, 2 Allen, 518. In the present case, we are unable to say that the evidence was insufficient in law, or so slight that it was the duty of the court to direct a verdict of not guilty. Exceptions overruled.