In BILITY. 1914.) (37 R. I. 168) structive notice to those who take a conveyance subsequent to such recording. STATE v. MARIANO. (No. 4634.) support of this contention the respondent (Supreme Court of Rhode Island. July 10, cites cases from Ohio, Kansas, Michigan, Texas, and New York. In only three of these 1. HOMICIDE (§ 163*)-EVIDENCE-ADMISSIstates-Kansas, Texas, and Ohio-does the statute fix any time for recording. In Kansas and Texas the statute provides for recording "forthwith," and in Ohio within six months. The courts in those states hold that the later record of the mortgage is a notice to parties who may subsequently deal with the property in question. In Burdick v. Coates, supra, this court held that a chattel mortgage could have no validity whatever if the mortgagee failed to take possession of the property or to record his mortgage within five days from the date of the signing thereof, quoting Drew v. Streeter, 137 Mass. 460. The conclusions reached by this court in Burdick v. Coates, supra, are in accord with the decisions of the courts of many other states. See Sheldon, Adm'r, v. Conner, 48 Me. 584; Kennedy v. Shaw et al., 38 Ind. 474; Simpson v. Harris et al., 21 Nev. 353, 31 Pac. 1009; Gassner v. Patterson et al., 23 Cal. 299; Sage v. Browning, 51 Ill. 217; People v. Hamilton et al., 17 Ill. App. 599; Lockwood v. Slevin et al., 26 Ind. 124; Parroski v. Goldberg, 80 Wis. 339, 50 N. W. 191; Bevans v. Bolton, 31 Mo. 437; Rawlings v. Bean et al., 80 Mo. 614; Garland v. Plummer, 72 Me. 397; Sidener v. Bible, 43 Ind. 230; McDowell et al. v. Stewart, 83 Ill. 538. These authorities are equally applicable to another contention of the respondent that an unrecorded chattel mortgage is valid against a subsequent purchaser with actual knowledge of the mortgage. The respondent also cites cases to the effect that an unrecorded conveyance of real estate is valid against a subsequent purchaser with notice of the prior conveyance. It does not however, appear that the questions submitted in the cases cited by the respondent upon this point arose under any statute peremptorily fixing a time within which conveyances of real estate shall be recorded, but that they were determined by the well-settled and well-understood equitable principles governing such matters. While, as before stated, there is authority supporting the respondent's contention regarding both constructive and actual notice, the weight of authority seems to support the law as laid down by this court in Burdick v. Coates, supra, and I see no reason for changing the views therein expressed regarding the interpretation of the statute in question. fact that the dead boy's anus was found open, In a prosecution for manslaughter, the which in the opinion of the doctors was due to its having been penetrated by some instrument just before or after death, and which one doctor stated might have been caused by the commission of the crime of sodomy, was insufficient basis for showing accused's sexual capacity to commit that crime. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 310-317; Dec. Dig. § 163.*] 2. WITNESSES (§ 236*)-EXAMINATION-QUESThe allowance of a question which was simply preliminary was not error. TIONS. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 817-826; Dec. Dig. § 236.*] 3. HOMICIDE (§ 338*)-APPEAL AND ERRORHARMLESS ERROR-ADMISSION OF EVIDENCE. The erroneous admission of evidence of the sexual capacity of one accused of manslaughter to commit the crime of sodomy, merely because the boy's anus was found open, which might have been caused by the commission of the crime of sodomy just before or after death, was prejudicial to accused, as that crime is disgusting and repulsive and the slayer would be regarded as a foul degenerate and a wicked and criminal pervert. [Ed._ Note.-For_other_cases, see Homicide, Cent. Dig. 88 709-713; Dec. Dig. 338.*] 4. CRIMINAL LAW (§ 404*)-EVIDENCE-DEMONSTRATIVE EVIDENCE. Demonstrative evidence, such as the skull, etc., of accused's victim, is relevant and admissible when it shows the commission of a crime or throws light on the way it was committed; but, if it explains no fact and is relevant to no disputed issue, it is excluded on account of its tendency to create prejudice. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. § 404.*] 5. CRIMINAL LAW (§ 40+)-EVIDENCE-ADMIS SIBILITY-DEMONSTRATIVE EVIDENCE. In a prosecution for killing another by blows upon the head with a stone or other blunt skull was admissible, as demonstrating the deinstrument, the fractured portion of the victim's structive force and effect of the blows inflicted, though accused announced that he would deny all knowledge of the homicide and would not dispute the evidence as to the homicide itself, as that simply left upon the state the burden of proving its case and did not bar it from offering any demonstrative evidence which might tend to throw light not only on the fact but on the mode of killing. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. § 404.*] 6. CRIMINAL LAW (§ 1169*)-APPEAL AND ERROR-HARMLESS ERROR-ADMISSION OF EVI DENCE. In a prosecution for manslaughter, where a boy witness had been asked upon cross-examination who told him not to take the watch I think that the complainant is entitled to offered by accused because it belonged to dea decree as prayed for in her bill of com-rect examination of evidence that it was his ceased, an exception to the admission on rediplaint. sister who told him was without merit. [Ed. Note.-For other cases, see Criminal PARKHURST, J., concurs in opinion of Law, Cent. Dig. 88 754, 3088, 3130, 3137-3143; VINCENT, J. Dec. Dig. § 1169.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 7. CRIMINAL LAW (§ 1169*)-APPEAL AND ER- [sible in the absence of anything happening at ROR-HARMLESS ERROR-ADMISSION OF EVI- the arraignment to render it inadmissible. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.*] 8. CRIMINAL LAW (§ 516*)-EVIDENCE-"CONFESSION." Statements of accused that he unintentionally caused deceased's death by striking with his foot a stone which hit deceased in the head were not strictly a "confession," which is a person's declaration of his agency or participation in a crime, and is restricted to acknowledgments of guilt; such statements being of an explanatory or exculpatory character. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1139-1145; Dec. Dig. 8 516.* For other definitions, see Words and Phrases, vol. 2, pp. 1417-1419; vol. 8, p. 7611.] 9. CRIMINAL LAW (8 406*)-EVIDENCE-AD A boy's admissions not amounting to a confession were not inadmissible because the officer said, "If you did it, say so, and I will do all I can for you," where he added, "If you didn't do it, don't say you did," to which the boy replied, "I didn't kill him, so I can't say I did," as the added words naturally refuted any suggestion in the preceding words of a recommendation to confess, and the reply showed no indication of having been influenced by what the officer had said. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. § 406.*] 12. CRIMINAL LAW (§ 406*)-EVIDENCE-AD MISSIONS-VOLUNTARY CHARACTER. That while the admissibility of an officer's testimony concerning accused's admissions was being discussed, accused's counsel asked the state to call certain other officers that he might crossexamine them upon the voluntary character of the admissions, no ruling being requested or made, nor did counsel himself offer to call such officers, who were afterwards called and crossexamined, was not ground for excluding such admissions. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. 406.*] 13. CRIMINAL LAW (§ 406*)-ADMISSIONS-ON ARRAIGNMENT. Accused's admission when arraigned that he killed deceased, but unintentionally, was admis [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920–927; Dec. Dig. § 406.*] 14. CRIMINAL LAW (§ 1169*)-ADMISSIONSVOLUNTARY CHARACTER. There was no error in refusing to strike out accused's admissions, as to the voluntary character of which the evidence was conflicting, where the court instructed the jury that they might consider all the evidence, but to exclude the admissions if they were not voluntary, to which no exception was taken. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.*] 15. HOMICIDE (§ 268-TRIAL-QUESTIONS FOR JURY. [Ed. Note. For other cases, see Homicide, Cent. Dig. § 562; Dec. Dig. § 268.*] 16. CRIMINAL LAW (§ 655*)-TRIAL-CONDUCT OF TRIAL. It is always incumbent upon the court, and especially so in the heat of the trial when it may be annoyed by the persistence of zealous counsel in the face of rulings already made, to avoid any utterance which would prejudice the accused with the jury. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 655.*] 17. INFANTS (8 66*)-CAPACITY TO COMMIT CRIME-QUESTIONS FOR JURY. 14 years of age, who was accused of manslaughWhether a boy lacking 3 months of being ter, had sufficient capacity to commit a crime, held, under the evidence, for the jury. [Ed. Note. For other cases, see Infants, Cent. Dig. § 172; Dec. Dig. § 66.*1 Exceptions from Superior Court, Providence and Bristol Counties; Elmer J. Rathbun, Judge. Antonio Mariano was found guilty of manslaughter, and case transferred from the superior court on his exceptions. Part of exceptions sustained and part overruled, and case remitted for a new trial. Livingston Ham, Asst. Atty. Gen., for the State. Anthony V. Pettine, of Providence, for defendant. BAKER, J. This is an indictment against the defendant, Antonio Mariano, for manslaughter in killing William A. Mather on February 29, 1912, in North Providence in this state. There are four counts in the indictment, the first two charging the killing by means of blows upon the head with a stone; the other two by blows upon the head "in some way and manner and by some means, instruments, and weapons to the grand jurors unknown." The case was heard on the 11th, 12th, 13th, 14th, 15th, 18th, and 19th days of March, 1913. At the trial the following statements showing the commission of a crime and its circumstances were in evidence and not disputed: On February 29, 1912, Mather was 12 For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes The defendant on February 29, 1912, lacked a few months of being 14 years of age; that is, he did not become 14 until June 4, 1912. He had attended the public school in Marieville for a short time during the fall of 1911, but with his relatives moved into Providence for a few months, where he was a pupil in the school on Branch avenue. Later they returned to Marieville, where, on February 29, 1912, he re-entered the public school but in a different room and in a lower grade than the one attended by the Mather boy. What follows sets forth in substance the material portions of the testimony connecting the defendant with the crime: years and 8 months old. He was a pupil, by penetration of the anus by some instruin the fourth grade, in the public schools at ment or body; that it was impossible to state Marieville, a village in said North Provi- what actually caused the dilation; and that dence. He attended both school sessions that it possibly might have resulted from the comday. He left his house at 10 minutes before mission of the crime of sodomy. 1 o'clock in the afternoon and reached the school after the session had begun and was marked tardy. In consequence of being late, he was detained 10 minutes after the close of the school for the day. He then went away, and there is no direct evidence that he was ever afterwards seen alive. His dead body was found on the side of Moses Angell Hill, near Mineral Spring avenue, on the evening of March 27, 1912, at a place more or less covered with trees and rocks and which was to all appearances little used or frequented in winter. The skull was crushed in from aboùt an inch back of the right ear to the middle of the occipital bone. There was a scalp wound and another fracture of the skull about the size of a half dollar on the top of the occipital bone. In addition there were four other scalp wounds and a contused wound with a slight abrasion on the right elbow. The anus of the body was open and distended, by measurement from 1% inches to 14 inches. When found, the body was lying prone with the head turned so that the left side of the face was resting on the ground, leaving the right cheek exposed, with the left arm under the body and the right arm over the back. The body was frozen and in a good state of preservation, excepting that there were indications that the right side of the face had been disturbed by some animal. The body was clothed with a shirt or waist, a "singlet" or undershirt, a pair of trousers, stockings, and shoes. The shirt or waist was torn and the suspenders were down off the shoulders. His coat and sweater were found behind a V-shaped rock higher up the hill and about 125 feet from where the body was found, and his cap still further up the hill about 25 feet away from said rock. There was blood on the sweater. At a distance of two feet from the head of the body when found lay a stone about 8 inches long, 5 inches wide and 12 inches thick, tapering in nearly all directions to a sharp edge, and weighing 4 pounds and 6 ounces. A microscopical examination, verified by chemical analysis, revealed traces of human blood, several human hairs, and a small piece of scalp tissue on portions of said stone. Suspicion was cast upon Mariano shortly after the finding of the dead boy's body. It appears that there had been some talk about his having bats. In answer to the request of other boys for bats, he promised to give them some. These boys were Pasco Busserio, James Amondi, and Antonio Amondi. They were at the time about 11 years old each. After school at noontime he told these boys to go up the hill (where the body was afterwards found), and said that they would find some bats behind a rock. Mariano went a little way with them and then started to go home. Not finding any bats, they got up on the rocks and called to him. In reply he told them to go higher up. They went higher up, but could find no bats; they did find, however, behind a rock, a coat, a sweater, and a rubber shoe. They left the clothes, but James Amondi took the rubber away. After school that day Mariano gave to James Amondi two bats and to two other boys three bats, or five in all, which he had properly obtained from a neighbor living across the street, a Mrs. Hayden by name. The date of these occurrences is not entirely clear, but it was apparently March 27th or thereabouts. At any rate, as Walter A. Lefevbre was returning from his work on that, day, he heard that boys had found some clothes up in the woods, and he started off the team, when it stopped at the bottom of the hill, and went up the hill, and after some search found the clothes. Later in the evening he with two other men and William M. Mather, father of the dead boy, went to the place, found and identified the clothes, and after further search found the dead The medical examiner, who made the autopsy, testified that the wounds upon the head might have been caused by "almost any blunt instrument" used with different de- body lying diagonally across an old cart grees of force; that said stone could have been such instrument; and that the blow which crushed the skull would cause "almost instant death." The distention of the anus was explained by the medical witnesses as being due to its having been dilated either just before or just after the boy Mather's death; that the dilation was caused path, in the condition already described. There 1912, the defendant was taken into custody by George P. Willis, chief of police of North Providence, and placed in one of the cells in the basement of the town hall at Centredale, after having been questioned several times by Mr. Willis and Domenico Conca, a special police officer, at which times the prisoner emphatically and repeatedly denied having caused the death. At about 10 o'clock in the evening, however, after first protesting, "Honest to God, Mister, I didn't kill him," he told Mr. Sanford E. Kinnecom, a deputy sheriff assigned to duty in the Attorney General's office, that on the day of the boy Mather's death he met him playing in the road with the boys near the spring; that Mather refused to play with him because he (Mariano) had given the other boys bats but none to him; that he then said to Mather, "If you want some bats, you come up the hill, and I will give you bats;" that they went up on the hill, and upon finding no bats Mather got mad and they fought, and he put his foot on Mather's neck, but afterwards let him up, and proposed that they climb up on the rocks; that they started to climb up on the rocks, himself leading the way and Mather following; that as they were doing this his foot knocked off a piece of the rock, which hit Mather on the head, who fell and lay on the ground; that Mather said nothing but breathed hard; that he kissed him and said a prayer over him and went home and cried all night: that he went back next day and found the body "just the same, his clothes all right. I knelt down side of him I say another prayer and I go home. I go back again, him all right." In answer to an inquiry as to why he sent the little boys up on the hill to look for bats, when he knew there were no bats there, he said: The entire party thereupon went in an automobile to the hill where the body had been found. Mariano went to a rock and reached down between the bushes and the rock. He felt all around without finding any watch, and then said: "I showed that stone to my brother. He see me there one day. He knew the watch was here. I bet he came and took it. If he did, I know where he put it." He As they were going back to the automobile, some one asked him if he could show where the stone fell off and hit the boy. He said he could. They went up the hill. After looking around at other rocks, he came to the one behind which the clothes were found, and said, "That is the stone there." This was the V-shaped rock. He also said that he tried to carry the boy home and did carry him a distance, but he was too heavy and so he left him. Said he thought he could show where he left him. He went up the hill and came back and said "kind of path." came back down the hill till he struck the path, followed it, looking around carefully, and finally said: "Yes, it was right here; he lay right this way." The place indicated was just about where the body was found. Then the party returned to the automobile and went to where Mariano lived. He had said that if his brother had taken the watch he would hide it down under the stairs in the cellar of the barn, as he hid everything there. They went to the barn and made The brother search, but found no watch. was wakened and brought out, but denied any knowledge of the watch. The defendant then said it was at his sister's house on IIassan street; that he had stayed there the night before, and it was under the couch; that the couch lining was torn, and he had put it in there. The party then went to the sister's house, but no one was at home. After some delay she was found, brought there, and an entrance effected. The prisoner walked right over to the sofa, reached under it, and the lining was torn as he had described, but no watch was found there, and no watch was This conversation was downstairs in the ever found. He was then taken at 3 or 4 cellroom, but the prisoner was not at the o'clock of the morning of March 31st to the time in a cell. The same evening, at about police station on Fountain street, Providence. 11.o'clock, upon being taken upstairs, Maria-On April 1st he was arrainged before Judge no repeated this statement in its essential Reuckert, of the Sixth district court, in his features in the presence of Mr. Willis, Mr. office. He read the charge to the boy and Conca, Inspectors Wolf and Ahearn of the asked him whether he was guilty or not police department of Providence, and Mr. guilty, and, as the boy hesitated somewhat, Kinnecom, but with some additional details. then said to him: "These people, the police, Some one asked, "What did you do with the say that you killed William Mather; now watch?" He replied that he went back the what do you say?" To this inquiry the boy third day and took the watch from the boy's replied, "I did, but I didn't mean to." "I want them to find him. I feel awful bad, I think of it all the time. But they no go where I tell them. I send them up there. Then tell them to go up further. Then I go home. They no find him. They no go where I tell them." clothes. Further asked what he had done with the watch, he said, "I hid the watch back of a stone over there on the foot of the hill." To the inquiry as to whether he could show where he hid it, he said: "Yes, side of big rock, some bushes right up side of the rock. I put it between the bushes and the rock," and said he would show where it was. The defendant in his testimony at the trial says that on February 29th, after the close of. school, at half past 3 o'clock in the afternoon, he went directly to George Frazza's house, broke some wood for him in his yard, played piggy for a while, and then went straight home over the fields, cleaned up the yard at the direction of his mother, and did not go out after he went home. He denies killing young Mather, and says that he did not see him February 29th, and did not know him; he sent the boys for bats, but explains that he had placed some bats, given him by Mrs. Hayden, in the field on his way to school, thinking the teacher would take them from him, if he brought them to school; admits trying to sell a watch to Petrochelli, but says it was a watch given him by one Frank Zabillo; admits making to Mr. Kinnecom and the other officers and to Judge Reuckert the statements related by them, but says the statements were untrue and that he made them by the direction of Domenico Conca and Anthony Capuano, who suggested the story he told as to Mather's death, and told him that by telling it he would get out and be permitted to go home; that he was frightened when in the cell and wanted to go home. He also says that Domenico Conca put him up to telling the story about William Mather's watch, and it was in consequence of what Conca said that he told Judge Reuckert what he did and that Conca told him all what he did and that Conca told him all this when he was in the cell at the town hall. He also says that Conca told him that the rock he pointed out was where William Mather was killed. George Frazza, a small school boy, says that the defendant went home with him at close of school on February 29th, and played piggy with him for half an hour, and Frank Zabillo testifies that he gave defendant a cheap watch in January, 1912. Defendant's younger brother Michael also says that he saw him with Frank's watch. The mother of Mariano says he came home February 29th "about 4:30 or five, but I do not remember well," and that when he came home he worked around the yard, and his appearance and conduct after February 29th was the same as at other times. He is described by one of his teachers as a very dull boy. In rebuttal Conca and Capuano denied defendant's charges that they induced the defendant to make the statements he did or were in any way the the author of them. The jury found the defendant guilty with a recommendation of mercy. Exceptions were taken to various rulings of the justice presiding at the trial in the course thereof, and the case has been heard by this court on defendant's bill of exceptions as allowed by the court below. The bill of exceptions as filed contains 35 exceptions. Three of these, respectively numbered 18, 21, and 31, were disallowed by the justice presiding at the trial and no attempt has been made to establish their correctness before this court. Those numbered 1, 2, 9, 24, 26, 27, and 30 have not been pressed before this court, thus leaving 25 for consideration. [1] As several of these exceptions relate to the same subject-matter, it will be convenient to group them in considering them. The fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and sixteenth exceptions all refer to the admission of testimony offered by the state tending to show that defendant had reached the age of puberty and and had the sexual capacity to commit the crime of sodomy. It was shown by the testimony that, while the defendant was detained at the Sockanosset School awaiting his preliminary examination before the Sixth district court, he was subjected to a physical examination on April 5 and 6, 1912 by Dr. Henry A. Jones, the resident physician at the State Institution, and Dr. Clifford H. Griffin, a medical examiner for the county of Providence, and the police surgeon of the city of Providence. The examination was made apparently for the express purpose of ascertaining his sexual development and capacity. While the prisoner was entirely nude, four photographs were taken of him in a standing position, one a front view, one a back view, and two side views, one of each side. [2] The third, fifteenth, and twenty-second exceptions relate to objections to the introduction of testimony respecting the physical examination and to the introduction in evidence of said photographs. The question to which the third exception lies was simply preliminary, and the allowance of the question and answer was not error and the exception is overruled. [3] The other 13 exceptions just enumerated, except the fifteenth, are all based upon the offers of testimony tending to show the sexual ability of the defendant to commit the crime of sodomy. The testimony of Drs. Barnard and Griffin and of the undertaker is that the anus of the dead boy was widely open. The two doctors express the opinion that this condition was due to its having been penetrated by some instrument either just before or just after the death of the Mather boy. This opinion as to the time of penetration is based upon said open condition of the anus, which these witnesses believe did not close after its dilation because death had destroyed the contractile power of the sphincter muscle. If these inferences as to the cause and time of said dilation are to be relied upon, it would not be unreasonable to conclude that the person who killed the boy was also the cause in some way of the dilation. Such a conclusion is doubtless the attempted justification of the offer of the evidence now being considered. The only suggestion in the evidence that the dilation was due to the commission of the crime of sodomy is found in the testimony of Dr. Griffin. On page 117 of the transcript this appears: Cross Q. 89. "Now, doctor, you didn't findyou couldn't say whether that penetration was caused by any particular instrument, could you?" Answer: "No sir." On page 125 of the transcript we find: C. Q. 136. "You are not willing to go on record as stating that the crime of sodomy was committed on William Mather, are you?" Answer: "No, sir: I am not. I say the condition |