Com. v. Bishop

• Decision Date: 03 January 1896
• Citation: 165 Mass. 148,42 N.E. 560
• Parties: COMMONWEALTH v. BISHOP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 148

42 N.E. 560

COMMONWEALTH v. BISHOP.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1896

COUNSEL

John D. McLaughlin, Dist. Atty., for the Commonwealth.

Clarence W. Rowley, for defendant.

OPINION

HOLMES, J.

This is an indictment for doing certain acts upon the body of one Petrene Matson with intent to procure an abortion, in consequence of which the said Petrene died. The case is here on exceptions which we will take up in the order in which they are discussed by the defendant.

1. The indictment contained two counts, the second count charging a similar offense upon another woman. The defendant moved for separate trials on the two counts, upon which motion the court suspended action, and, when the evidence of the government was in, granted it. The exception on this point is not pressed, it being admitted to be a matter within the discretion of the judge. Com. v. McCluskey, 123 Mass. 401.

2. The court instructed the jury that one Carl F. Monk, the witness who furnished the principal evidence for the government, was an accomplice who had turned state's evidence to avoid the consequences of his part in the affair, and that they were to take the circumstance into consideration in weighing his testimony. At the close of the charge the defendant asked for fuller instructions as to the uncorroborated testimony of an accomplice, which the court refused. It is settled that the court is not bound to advise the jury that generally it is unsafe to convict on such testimony, although courts sometimes do so. Advice upon the matter is, in substance instructing the jury that there is a presumption of fact concerning the veracity of a certain class of witnesses. Although it is permissible, and in some cases may be desirable, to advise in the form above mentioned, the general rule, under our practice, is to leave such presumptions to the jury, and it is in the discretion of the presiding judge to follow the general rule rather than the exception, if it seems best to him to do so. Com. v. Wilson, 152 Mass. 12, 14, 25 N.E. 16; Com. v. Clune, 162 Mass. 206, 214, 38 N.E. 435. See Com. v. Briant, 142 Mass. 463, 464, 8 N.E. 338; Graham v. Badger, 164 Mass. 42, 47, 41 N.E. 61.

In this case the evidence was not wholly uncorroborated. The defendant admitted that he published advertisements which, to say the least, might be understood to hold out that he was ready to do acts of the kind charged, and it appeared by another witness that the defendant wanted to see him, in order that the alleged accomplice should employ the defendant's lawyer, and that the defendant showed some anxiety to avoid the accomplice after the latter had been arrested. The defendant's conversations with the witness, taken as a whole, might have been interpreted, also, to admit, by implication, the witness' suggestion to the defendant that he "thought he did a job for him," and to warrant the inference that the job referred to was the alleged crime.

3. Monk testified that the defendant Bishop gave him a slip of paper to take to a certain address, along with the said Petrene Matson, and that he took it there, and delivered it to the defendant Cole. The counsel for Cole declined to ask his client whether she admitted the receipt of the alleged paper. The court thereupon admitted secondary evidence of its contents, which appeared to be directions in the case of Matson after the operation. If Cole had admitted that she had accepted such a paper without repudiating what it implied, the fact would have been very strong evidence against her. It is plain, therefore, that the judge was warranted in assuming that Cole refused to admit the receipt of the paper, or to produce it, irrespective of any question of the sufficiency of the notice to produce, and if he was of that opinion he was warranted in letting in the evidence as against Bishop.

4. Monk also testified that he went to the Globe office and bought a Sunday Globe, looked at the advertisements, and in consequence of seeing an advertisement went to the defendant's office, where he had testified before that he asked the defendant to procure the abortion. This matter is one of those usual preliminaries which hardly could have been objected to if it had stood alone. If it was connected with the defendant's admission that he advertised in the Globe, and his statement of what he advertised, it fairly warranted the inference that the witness went to the defendant in pursuance of an offer of the latter to the public.

5. One Cole, an alleged accomplice of the defendant, other than the above-mentioned witness, was tried at the same time. On every occasion when evidence was admitted against Cole which was not admissible against this defendant, the court instructed the jury that it was not to be considered against this defendant. There is nothing to show that this course was not within the discretion of the...