Com. v. Brunelle
| Decision Date | 26 January 1961 |
| Citation | 341 Mass. 675,171 N.E.2d 850 |
| Parties | COMMONWEALTH v. Pierre V. BRUNELLE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Richard S. Kelley, Asst. Dist. Atty., Boston Robert M. Sriberg, Spec. Asst. Dist. Atty., Newton, for the Commonwealth.
James D. St. Clair, Boston, for defendant.
Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.
The defendant was found guilty by a jury on an indictment which charged that on February 10, 1960, at Medford, he, with intent to procure the miscarriage of Margaret L. Calder, unlawfully used a certain instrument upon her body. The indictment was in the language of the statute, G.L. c. 272, § 19, and in the form provided by G.L. c. 277, § 79. Sentence was imposed and the defendant appealed in accordance with the provisions of G.L. c. 278, §§ 33A-33G. Of his five assignments of error he has argued those numbered 1, 2, and 5. Assignments 1 and 2 are to the exclusion of questions by the defendant to witnesses of the Commonwealth in cross-examination, and assignment 5 is to the denial of the defendant's motion for a directed verdict.
There was evidence that Mrs. Calder was a divorced woman, with two children, living in Medford. The defendant was a doctor with an office in Lowell. Mrs. Calder's family physician was a Dr. Mills whom she had consulted regularly from November 16, 1958, to and including February 9, 1960. She had known the defendant socially for four or five years. On or about February 3, 1960, she called him on the telephone and told him that she needed him 'for some special services.' She called him thereafter several times and made an appointment for him to come to her home on February 10. He arrived at about noon, bringing with him two bags containing instruments and a sterilizer. He asked her how she was feeling and she said 'fine.' He took her blood pressure, examined her heart, and went with her to a bedroom, where he inserted in her 'vaginal area' 'some metal rods, or things,' a tube and some gauze bandage. He had told her that his fee would be $300 and she paid him this sum in cash.
The defendant concedes for purposes of his appeal that there 'was ample evidence which would warrant the jury in finding that the defendant used an instrument with intent to procure the miscarriage of Mrs. Calder' but contends that the evidence was insufficient to warrant a finding that the defendant used the instrument unlawfully.
We have held that a physician is justified in effecting an abortion where he has exercised his skill and judgment in the honest belief that his acts were necessary to save the woman from great peril to her life or health (Commonwealth v. Brown, 121 Mass. 69, 76-77) provided that his judgment corresponds 'with the average judgment of the doctors in the community in which he practises.' Commonwealth v. Nason, 252 Mass. 545, 551, 148 N.E. 110, 112. See Commonwealth v. Corbett, 307 Mass. 7, 11-12, 29 N.E.2d 151. It was said in Commonwealth v. Wheeler, 315 Mass. 394, 395, 53 N.E.2d 4, 5, 'For the purpose of this case at least, we may assume that, in general, a physician may lawfully procure the abortion of a patient if in good faith he believes it to be necessary to save her life or to prevent serious impairment of her health, mental or physical, and if his judgment corresponds with the general opinion of competent practitioners in the community in which he practises.'
The Commonwealth had the burden of proving beyond a reasonable doubt the material averments of the indictment, one of which was that the defendant used the instrument 'unlawfully.' Commonwealth v. Wood, 11 Gray 85; Commonwealth v. Sholes, 13 Allen 554, 558; Commonwealth v. Thompson, 108 Mass. 461; Commonwealth v. Brown, 121 Mass. 69, 76, 81; Commonwealth v. Stone, 300 Mass. 160, 166, 14 N.E.2d 158. See Commonwealth v. Wheeler, 315 Mass. 394, 53 N.E.2d 4. This allegation negatived and precluded 'any inference or possibility that the act was done by a surgeon for the purpose of saving the life of the woman, or under any other circumstances which would furnish a lawful justification.' Commonwealth v. Sholes, 13 Allen 554, 558. It required the Commonwealth not only to prove the facts of the abortion but also to disprove either an honest belief on the part of the defendant that he acted to preserve the life or health of the woman or that his judgment conformed to that of competent fellow practitioners.
Where the defendant is not a physician the mere proof of his act ordinarily would be sufficient to establish its unlawfulness (see Commonwealth v. Polian, 288 Mass. 494, 193 N.E.2d 68, 96 A.L.R. 615; Commonwealth v. Dawn, 302 Mass. 255, 19 N.E.2d 315; Commonwealth v. Viera, 329 Mass. 470, 109 N.E.2d 171; Commonwealth v. Goldenberg, 338 Mass. 377, 155 N.E.2d 187, 70 A.L.R.2d 814) but...
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