Com. v. Homer

• Decision Date: 27 February 1891
• Citation: 153 Mass. 343,26 N.E. 872
• Parties: COMMONWEALTH v. HOMER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 343

26 N.E. 872

COMMONWEALTH v. HOMER.

Supreme Judicial Court of Massachusetts, Essex.

February 27, 1891

Report from superior court, Essex county; JOHN W HAMMOND, Judge.

COUNSEL

A.J Waterman, Atty. Gen., and H.C. Bliss, Asst. Atty. Gen., for the Commonwealth.

W.S Knox and H.G. Johnson, for defendant.

OPINION

W. ALLEN, J.

Pub.St c. 207, § 9, provide that whoever, with intent to procure the miscarriage of a woman, shall do certain acts or use certain means, shall, if the woman dies in consequence, be imprisoned in the state-prison not exceeding 20 nor less than 5 years, and, if the woman does not die in consequence, shall be punished by imprisonment in the state-prison not more than 5 years or by a fine. St.1889, c. 100, provides that, "in criminal prosecutions under and for violation of section 9 of chapter 207 of the Public Statutes, where the death of the woman is alleged to have resulted from the means therein described, the dying declarations of such woman shall be admissible in evidence." The defendant was tried on an indictment found after the passage of the latter act for an offense under the former, alleged to have been committed before the passage of the latter, in which the death of the woman was alleged to have resulted from the means described. At the trial the dying declarations of the woman were admitted against the objection of the defendant. The statute describes a single offense, that of using means with a certain intent. The death of the woman is no part of the offense, (and is immaterial both in allegation and proof.) The indictment need not allege whether she did or did not die, and, if it alleges that her death was the result of the means used, it is not an indictment for manslaughter. The fact of the death affects the punishment only. Com. v. Brown, 14 Gray, 419; Com. v. Thompson, 108 Mass. 461. The death of the woman is not the subject of the charge, and her dying declarations are not admissible under the common-law rule. Rex v. Hutchinson, 2 Barn. & C. 608, note; People v. Davis, 56 N.Y. 95; Railing v. Com., 110 Pa.St. 100, 1 Atl.Rep. 314. The question, therefore, is whether the statute of 1889 has a retrospective effect, and renders the evidence competent to prove an offense committed before its passage. The defendant contends that, if the statute is construed to apply to offenses committed before its passage, it comes within the constitutional prohibition of ex post facto laws, and refers to the definition of such laws given in Calder v. Bull, 3 Dall. 386, and Cummings v. State, 4 Wall. 277. But there is no occasion to consider this question, because we think that the statute must be construed as prospective only in its operation. The language of the court in Bank v. Copeland, 7 Allen, 139, is applicable to the case at bar: "The statute is equivocal and ambiguous in its terms, and might, without doing violence to the words in which it is expressed, be construed as retroactive. But such is by no means its necessary interpretation. On the contrary, it will have full meaning and effect, consistent with the fair import of its language, if it be held to be prospective only. The true rule of interpretation applicable to such enactments is well settled, and has been often recognized and affirmed by this court. It is that all statutes are to be considered as prospective, and are not to be held to prejudice or affect past transactions of a subject, unless such...