Commonwealth v. Colangelo

Wait, J.

These exceptions are without merit. It was a material circumstance that the injured girl made no complaint to her mother immediately after the alleged assault upon her. Evidence to account for this was competent. The question to the daughter with its answers were admitted properly. Commonwealth v. Rollo, 203 Mass. 354 .

The testimony of the doctors was rightly admitted. Whether an examination made in April, 1925, was too remote from the time of the alleged assault about Thanksgiving in 1924, was for the trial judge to decide. Commonwealth v. Regan, 175 Mass. 335 . We cannot say he was wrong in admitting the evidence.

The statement that the intercourse had taken place around Thanksgiving was not admissible as proof of the fact, and could not be introduced to establish the fact in the form of testimony by a physician to what a patient or subject for examination had told him. Commonwealth v. Sinclair, 195 Mass. 100 . Nor was it admissible as a fresh complaint. Commonwealth v. Cleary, 172 Mass. 175 . The judge instructed the jury when it was admitted that the girl’s state *167 ment to the physician in regard to what happened to her was not evidence as to whether the defendant did anything to her or not. The statements were admissible as a basis for the physician’s opinion upon the condition of her body. Barber v. Merriam, 11 Allen, 322 . Commonwealth v. Smith, 213 Mass. 563 . We cannot assume that the jury disregarded the judge’s instruction. Commonwealth v. Ham, 150 Mass. 122 .

No question of law is presented by the denial of the motion for a new trial.

Exceptions overruled.