Com. v. Aronson

• Decision Date: 29 October 1953
• Citation: 115 N.E.2d 362,330 Mass. 453
• Parties: COMMONWEALTH v. ARONSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 362

115 N.E.2d 362

330 Mass. 453

COMMONWEALTH v. ARONSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 5, 1953.

Decided Oct. 29, 1953.

Frederick T. Doyle, Asst. Dist. Atty., Boston, for the Commonwealth.

Julius H. Soble, Boston, Herbert F. Callahan, Boston, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

LUMMUS, Justice.

The defendant was indicted under G.L. (Ter.Ed.) c. 272, § 19, for unlawfully administering to a woman named Pitts a poison, drug, medicine or other noxious thing, and for unlawfully using on the body of said Pitts an instrument, all with intent to procure the miscarriage of said Pitts. He was found guilty by the jury, and sentenced to imprisonment in the State prison. Later the execution of the sentence was stayed and he was released on bail. The case comes here on his appeal under G.L. (Ter.Ed.) c. 278, §§ 33A-33G, as amended, with a summary of the record, a transcript of the evidence, and as assignment of errors.

The assignment of errors raised the question whether the evidence warranted a finding that the defendant operated on the woman for the purpose of causing an abortion. There was evidence tending to prove the following facts. On May 23, 1950, the defendant was a physician about sixty years old, a graduate of a leading college and of its medical school, who began practice in 1916 but had ceased active practice in 1935. He had retained some of his patients though he had no office. He lived in Brookline. A friend and patient of his was an elderly married woman name Robbins who lived with her husband in an apartment at 103 Mountfort Street in Boston.

Pitts thought that she was six weeks advanced in pregnancy. She made arrangements with a man named Ayoub, with whom she worked, to take her to see the defendant in Brookline on the morning of May 23, 1950. Before they arrived at the defendant's house she telephoned him and asked whether she could have an abortion. The defendant said that she could and told her to come to his house. At his house the defendant examined her vagina briefly, and told her to go to 103 Mountfort Street in Boston. He told her that the operation would cost $325. Pitts and Ayoub drove to 103 Mountfort Street, and entered the Robbins apartment. Later the defendant came there and met them. The defendant caused Pitts to lie down on a table in the kitchen. Then Pitts felt something in her private parts, a scraping sensation. After Pitts had risen, the defendant injected penicillin in her buttocks. The defendant had sterilized surgical instruments, belonging to him, and had them in the kitchen. Pitts paid him $325 as agreed.

After this police officers, who had been watching the defendant from the time he left his house, came into the apartment at 103 Mountfort Street. The defendant left by the rear door, although his automobile was parked on the street. He told an officer that he had been visiting a friend. In the apartment afterwards he was asked by a police officer what he was doing there with Pitts and Ayoub. He said he would stand on his rights and would not answer. He told Mrs. Robbins that she did not have to answer the questions of the police officers. Later at the police station the defendant attempted to conceal a paper with the name and address of Pitts written on it.

The defendant moved for a directed verdict in his favor. There was evidence of something done in the vagina of Pitts, in pursuance of an agreement to give her an abortion, for which she paid $325, a sum grossly excessive as payment for a lawful examination. Proof that she was pregnant is not required for a conviction. Commonwealth v. Viera, 329 Mass. 470, 471, 109 N.E.2d 171. There was no error in submitting the case to the jury.

Several assignments of error relate to the fact that the judge did not instruct the jury, though requested, that there was no evidence of the administration of any poison, drug, medicine or other noxious thing. It is true that there was none, and the judge might well have given the instructions requested. Commonwealth v. Albert, 310 Mass. 811, 821, 40 N.E.2d 21. But the defendant could be convicted of the violation of a part of the section creating the offence. Commonwealth v. Martin, 304 Mass. 320, 23 N.E.2d 876; Commonwealth v. Beal, 314 Mass. 210, 224, 50 N.E.2d 14. We are unable to see that the defendant was harmed. Neither the prosecutor in his opening nor the judge in his charge suggested that the defendant could be found guilty except upon proof of the use of some instrument. In the charge the judge said, 'The government only has to prove there was some instrument, some tool inserted into the vagina of this woman.' Obviously no question of poison, drug, medicine or noxious thing was submitted to the jury, and we cannot attribute to the jury such irrational conduct as to find the defendant guilty upon no evidence whatever. Commonwealth v. Beal, 314 Mass. 210, 224, 50 N.E.2d 14.

In his charge the judge said, 'The offence is the intent, and that is the only thing in which you are concerned, to find upon the evidence with respect to what I will tell you about the rest of the statute.' One assignment of error relates to that passage. The defendant contends that the judge permitted the jury to find the defendant guilty without proof of any overt criminal act. But the defendant cannot rely upon a single passage which when lifted from its context may be inaccurate. The impression created by the charge as a whole constitutes the test. Doherty v. Phoenix Ins. Co., 224 Mass. 310, 318, 112 N.E. 940; Cronin v. Boston Elevated Railway Co., 233 Mass. 243, 246, 123 N.E. 686; Ouillette v. Sheerin, 297 Mass. 536, 542, 9 N.E.2d 713. The judge told the jury that the defendant could not be convicted if he merely examined the woman, but that he could be convicted if 'there was some instrument, some tool inserted into the vagina of this woman.' We think that the jury could not fail to understand that a criminal intent and a criminal act must concur, in order to convict the defendant.

One assignment of error is to the failure of the judge to instruct the jury as requested that the defendant could not be convicted upon conjecture, surmise or speculation or without a solid foundation of established facts. There is no doubt of the correctness of the instruction requested. Commonwealth v. Ehrlich, 308 Mass. 498, 500, 33 N.E.2d 259. But the judge told the jury that the prosecution must prove beyond a reasonable doubt all the material facts constituting the crime. We think that the requested instruction was given in substance, and that is all that the law requires. A defendant has no right to have the judge adopt and give his request in terms. The same is true of the defendant's request for an instruction that when evidence tends equally to prove either of two inconsistent propositions, neither can be said to be proved.

The Commonwealth called as a witness a Mrs. Del Vecho, who lived on Mountfort Street. She testified that she saw the defendant carrying a brown bag on the morning of May 23, 1950. There was no error in excluding questions asked by the defendant as to the number of such bags she had ever seen, and as to whether she believed that a bag shown to her in the court room was like the bag the defendant was carrying. These questions had little if any relevancy.

A man who lived at 103 Mountfort Street testified that he had seen the defendant there a few months before May 23, 1950, in company with a woman. There was no error in the admission of this testimony. The defendant and Mrs. Robbins were charged with conspiracy, and the testimony tended to show his association with her. Error was assigned also to the exclusion on cross-examination of the question whether in view of the busy life of the witness he had little opportunity to know whether other tenants at 103 Mountfort Street had visitors. The extent of cross- examination rests largely in the discretion of the judge, and we see no error in his action. Commonwealth v. Granito, 326 Mass. 494, 496, 95 N.E.2d 539.

The defendant assigns as error the...