Home L. GROSSMAN SONS, INC. vs. SAMUEL S. CRESCIONE & another.

4 Mass. App. Ct. 855

November 26, 1976

The "Findings, Rulings and Order for Decree" of the Land Court requiring reformation of a mortgage deed on the ground of mutual mistake, but subject to the right of the defendant trustee in bankruptcy of Samuel S. Crescione, an original mortgagor (see Section 70[c] [3] of the Bankruptcy Act. 11 U.S.C. Section 110[c] [3] [1970]), were correct and a proper basis for the judgment which was entered. It is unnecessary to repeat the Land Court's careful analysis and discussion. See also Hillside Co-op. Bank v. Cavanaugh, 232 Mass. 157 , 161 (1919); In re Cobb, 14 F. Supp. 465 (E.D. Mich. 1936). The plaintiff, a successor to the original mortgagee who had foreclosed the mortgage, is not entitled to a more favorable judgment; and the defendants do not complain of its form or scope. Compare Hillside Co-op. Bank v. Cavanaugh, supra.

Judgment affirmed.

Home COMMONWEALTH vs. RAYMOND L. COOLBETH.

4 Mass. App. Ct. 855

November 26, 1976

1. The only question (properly) argued on appeal is whether the complaints made by the victim to her "aunt" and her mother in the early evening of October 9, 1974, were, as matter of law, too remote in time from any of the offences committed (under G. L. c. 265, Section 23) in the mornings of September 30 and October 7 and 9, 1974, [Note 1] to be admissible under the so called "fresh complaint" rule. See Commonwealth v. Cleary, 172 Mass. 175 , 177 (1898); Commonwealth v. Spare, 353 Mass. 263 , 265-266 (1967); Commonwealth v. Howard, 355 Mass. 526 , 530 (1969); Commonwealth v. Hanger, 357 Mass. 464 , 466 (1970). We do not answer the question because we are not persuaded that the admission of either complaint resulted in any real harm to the defendant. See and compare Commonwealth v. Howard, 355 Mass. at 530; Commonwealth v. Izzo, 359 Mass. 39 , 43 (1971). The victim's direct examination was confined to testimony concerning the commission of the offences. The critical question whether she had made any complaint to

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her "aunt" or her mother (see Glover v. Callahan, 299 Mass. 55 , 57 [1937]; Commonwealth v. Izzo, 359 Mass. at 44) was first broached in the evidence during the defendant's cross-examination of the victim; on no less than four separate occasions (either in reply to questions by counsel [Note 2] or by means of unresponsive answers not objected to) the victim gave affirmative testimony to the effect that she had complained of the defendant's conduct to both her "aunt" and her mother in the evening of October 9. When the details of the complaints were subsequently offered through the mother and the "aunt," the defendant made no effort to limit the jury's consideration of the complaints to the offence which they could have found had been committed on October 9. Contrast Commonwealth v. Ellis, 319 Mass. 627 , 629 (1946). The details of both complaints were colorless, and the jury heard nothing they had not already heard during the course of the victim's testimony. See Commonwealth v. Bailey, 370 Mass. 388 , 393 (1976). The instructions given by the judge as to the use which might be made of such complaints, both when they were admitted and subsequently in the charge, were full and accurate. See Commonwealth v. Bailey, 370 Mass. at 395. 2. We note in conclusion that no objection was voiced below that either complaint was the product of coercion. Contrast Commonwealth v. Hanger, 357 Mass. at 466-467.

Judgments affirmed.


FOOTNOTES

[Note 1] There was also an indictment for, as well as evidence of, a fourth offence committed on October 10, 1974.

[Note 2] Most explicit, but not atypical, was the following: "Q. Well, how many times did you talk to your mother about Mr. Coolbeth taking you to a fish and chip place in Millbury and having sexual intercourse with you? A. Once."