Commonwealth v. Bell , 166 Pa. 405 ( 1895 )

Opinion by

Mb. Justice McCollum,

Seven of the nine specifications of error filed in this case really raise but one question and that is whether in a prosecution for incestuous fornication it is competent for the commonwealth to introduce evidence of illicit relations between the parties prior to the commission of the specific offence laid in the indictment. In Wharton on Criminal Evidence, section 35, it is said by the learned author that “ in prosecutions for adultery or for illicit intercourse of any class, evidence is admissible of sexual acts between the parties prior to, or when indicating continuousness of illicit relations, even subsequent to the act. specifically under trial.” This is in accord with the rule as stated in Greenleaf on Evidence, vol. 2, section 47, and in Am. & Eng. Ency. of Law, vol. 1, page 214, and vol. 10, p. 344. Roscoe in his treatise on criminal evidence says the notion that acts of improper intimacy cannot be shown if they disclose other and distinct offences of the same nature as the one charged in the indictment, is exploded. To this point the language of the court in State v. Markins, 95 Ind. 464, is so pertinent that we quote it: “ It would be a singular rule that would admit evidence of lascivious conduct and yet exclude evidence of acts which of all the series supplies the strongest evidence that the crime charged was one likely to be committed. If the rule were that the state might show previous lascivious conduct, but must not show an act of sexual intercourse, we should have the singular anomaly of a legal rule rejecting evidence simply because of its strength and importance.” If an act is so remote in point of time from the act laid in the indictment that the statute of limitations would protect the participants in it in case of their prosecution for it, it is still admissible if it is one of a series of acts indicating continuousness of sexual intercourse: Greenleaf on Ev., vol. 2, sec. 47, and Am. & Eng. Ency. of Law, vol. 10, p. 344, and cases cited. The principles above stated are well sustained by the cases referred to as authority for them, and they are not in conflict with any rule established by the decisions of this court. To the extent that our decisions throw light on the question we are consi dei'ing they are in accord with these principles : Respublica v. Hevice et al., 2 Yeates, 114, and Gardner v. Madeira, Ib. 466. We conclude therefore that it was proper for the commonwealth to introduce evidence of prior illicit relations between the parties although such evidence disclosed other indictable offences of like nature which were barred by the statute of limitations. This evidence was carefully restricted by the learned court below to the purpose for which it was clearly admissible, and the correctness of' the instructions in regard to it is not questioned by any specification of error. But it appears in the evidence descriptive of the incestuous relations between the parties that the defendant denied the prosecutrix the privilege of attending church and Sunday school and of social intercourse with the young people of the neighborhood. While the existence of the fact thus disclosed was not disputed, the learned counsel for the defendant contend that it was irrelevant, and that its appearance in the case was prejudicial to their client. If it be conceded that it was immaterial as an independent fact having no relation to the alleged incestuous intercourse between the parties, it does not follow that it was so, under the circumstances shown in this case. According to the testimony of the prosecutrix the defendant based his denial of the privileges mentioned on his desire for sexual intercourse with her. In the light of this evidence it seems that the denial was prompted by his illicit passion and was intended to secure the gratification of it. Whether it be regarded as punishment for unwillingness to yield to every demand of his lust or as a method of increasing the opportunities for satisfaction of it, makes no difference, as in either case it was an act in furtherance of his incestuous purpose. In view of the prosecutrix’s testimony in regard to the defendant’s explanation of the act and the statement of his reasons for it, we cannot say that it was irrelevant.

There is no merit in the fifth specification of error. It is defective and misleading because it does not show all that was done under the ruling complained of. The prosecutrix was asked if she told her brother and sisters about the offence charged in the indictment at the time of it, or immediately after its commission, and she replied that she did not, but added that she told her sisters about it five or six months afterwards. The court refused to allow her to state what she said to them, because upon her own showing, it was not within the ruling which limited the evidence to what she said at the time or immediately after the offence was committed. No motion was made by defendant’s counsel to strike out her answer or so much of it as was not strictly responsive to the question, nor was any suggestion made by them that it was in any degree prejudicial to their client. In fact such suggestion could not have been made with any show of reason for it. We conclude therefore that there is nothing in the fifth specification which calls for a reversal of the judgment.

The objection to the ruling complained of in the ninth specification of error is that the evidence offered was part of the commonwealth’s case in chief. This being so, the admission of it in rebuttal is not assignable in error: Finlay v. Stewart, 56 Pa. 183, and Brown v. Finney, 67 Pa. 214.

The defendant ought not to object to what the prosecutrix said to her grandmother respecting the paternity of her second child. It was a declaration in support of his contention regarding its paternity and it cannot well be claimed that he was injured by it.

Judgment affirmed.