Com. v. Goldenberg
| Decision Date | 15 January 1959 |
| Parties | , 70 A.L.R.2d 814 COMMONWEALTH v. Karl GOLDENBERG (three cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John W. McIntyre, Asst. Dist. Atty., Attleboro, for the Commonwealth.
Melvin S. Louison, Taunton (Lawrence D. O'Donnell, Dorchester, and Leonard Louison, Taunton, with him), for defendant.
Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.
The defendant has been found guilty by a jury on three indictments numbered 9148, 9149, and 9150, in which he is charged respectively with an unlawful attempt to procure the miscarriage of one Roberta L. Lane, with the rape of said Roberta L. Lane, and with the commission of adultery with her. He has been sentenced on the first two indictments, and the third for adultery has been placed on file. The indictments were tried together and the defendant's exceptions, to which we hereinafter refer, are presented in a consolidated bill of exceptions.
In response to motions by the defendant the Commonwealth filed bills of particulars, G.L. c. 277, § 40, in which it stated that the offences which were the subjects of the indictments were committed at the office of the defendant in Taunton on the evenings of February 27 and 28, 1957. As to allegations in indictment 9148 it stated that it was unable to specify the name of the drug used; that it did not know the identity of the 'other noxious thing'; and that the instrument used was '[s]ome sort of vibrator.' In respect to the other indictments 9149 and 9150 it specified the physical acts of the defendant. Exceptions to the denial of motions for further particulars should be overruled. Those furnished were adequate to inform the defendant of the charges against him and to enable him to prepare his defence. Commonwealth v. Lammi, 310 Mass. 159, 161-162, 37 N.E.2d 250. 'Some sort of vibrator' was a sufficient description of the instrument to which indictment 9148 referred. Commonwealth v. Thompson, 159 Mass. 56, 33 N.E. 1111. See Commonwealth v. Martin, 125 Mass. 394. The name of the drug was not required, nor a statement that the grand jury did not know its name. Commonwealth v. Morrison, 16 Gray 224; Commonwealth v. Sinclair, 195 Mass. 100, 107, 80 N.E. 799.
There was evidence at the trial that the defendant was a physiotherapist with an office in his house at Taunton where he lived with his wife. At the time of the alleged offences, Roberta L. Lane, the woman named in the indictments, was nineteen years of age and unmarried. She was three months pregnant and on the evening of February 27, 1957, accompanied by her mother with whom she lived and a friend of her mother, one Edward Schell, called on the defendant at his office in Taunton for the purpose of procuring an abortion. Schell had learned of the defendant from another physiotherapist in Boston. Roberta informed the defendant of her condition and he told her that the price would be $125 for three treatments. He said that these treatments would work nine times out of ten but, if they did not, he knew someone in East Providence to whom he would refer her. She undressed in a bedroom adjoining his office and then took a steam both for about twenty minutes. After the bath the defendant applied a vibrator to her private parts. It was rubber, had a handle on it, and was electrically operated. He said that 'it should work' and that she 'would reach a climax.' She reached a climax as a result of its application. The defendant next used a water belt around her stomach and back. She felt a mild shock such as 'you would get with an electric cord.' While she was on the table he used a sun lamp on her back. Then he gave her two injections with a needle in her buttocks. It "stammered' her speech' and she felt 'very funny.' She was able to walk but it was not like her normal walk. After the treatment which took about an hour she returned to her home in Mattapan.
She cane again to the defendant's office on the following evening. Only Schell accompanied her as her mother was working. She saw there two women who were about to leave, one elderly and one younger. Schell went into a television room off of the office and the defendant locked the door after him. Roberta repeated the steam bath and the defendant again used the vibrator and the water belt. He gave her two injections as before. He then told her that he was treating the woman who had just left for the same thing and that 'he had to have intercourse' with her, that it 'would help it some way.' She testified that she did not tell the doctor not to do it to her when he said he had to have intercourse with her for the same reason as with the prior woman. He then pulled her down to the end of the table on which she was lying unclothed with a towel over her and had intercourse with her. The incident 'took probably five minutes.' After it was over she got off the table and dressed herself. After she came out of the bedroom the defendant asked Schell for money and was paid $125. Roberta was able to talk but had thickness of speech. When Schell asked her how she felt, she said 'Fine.' She said nothing to Schell of what had occurred. She told of it to a friend some days after and later to her mother. It was then reported to the State police. Roberta did not return for a third treatment but Schell went to Taunton on March 1 and the defendant refunded $25. Schell asked him what kind of drug he had given Roberta and he gave Schell a box top and said that was the drug. The defendant asked Schell for Roberta's address and telephone number 'so that he could apologize' but Schell would not give them to him. Roberta was examined by Dr. Richard Ford on March 7. He found 'five small red punctate or point like marks on her buttocks.' Only two were definitely consistent with being needle puncture marks. Dr. Ford testified that 'there is no substance that can be injected into the buttocks, or anywhere else, of a chemical nature that will produce an abortion unless the substance is such a deadly poison that it would make the mother desperately ill. * * * [I]f puncture marks lasted for eight days, then something of an irritating or viscous nature must have been injected.'
At the conclusion of the evidence the judge denied motions for directed verdicts of not guilty subject to the defendant's exceptions.
The indictment 9148 for attempt to procure a miscarriage was returned under G.L. c. 272, § 19, which so far as material to this case provides, 'Whoever, with intent to procure the miscarriage of a woman, unlawfully administers to her, or advises or prescribes for her, or causes any poison, drug, medicine or other noxious thing to be taken by her or, with the like intent, unlawfully uses any instrument or other means whatever * * * shall * * * be punished * * *.' The indictment substantially followed the form authorized by G.L. c. 277, § 79, and charged that the defendant on or about February 28, 1957, with the intent to procure the miscarriage of Roberta L. Lane, unlawfully administered to her a 'certain drug or other noxious thing,' and used a 'certain instrument,' and 'a lamp, a belt and steam bath' on her body.
There was no error in the denial of the motion for a directed verdict. It could be found that the defendant treated the woman substantially in the manner to which she testified and that his treatments were intended to procure her miscarriage. The statute is sufficiently comprehensive to include all methods of procuring an unlawful abortion. Commonwealth v. Viera, 329 Mass. 470, 109 N.E.2d 171. Whether the methods employed were likely to accomplish the intended result is immaterial. There was evidence from the physical effect upon the woman that the injections were of some drug. The vibrator could be classified as an instrument. 'Other means' were used in the form of steam baths and by the application of a water belt and sun lamp. The Commonwealth was required to prove only one of the methods prohibited by the statute. Commonwealth v. Viera, supra.
In respect to indictment 9149 we think that the evidence was insufficient to prove that rape was committed. The common-law crime of rape is set forth in G.L. c. 265, § 22, which provides that 'Whoever ravishes and carnally knows a female by force and against her will shall be punished by imprisonment in the state prison for life or for any term of years.' '[A]gainst her will' means 'without her consent', a phrase apt to describe the attitude of a woman who in fact is unconscious. Commonwealth v. Burke, 105 Mass. 376; Commonwealth v. Roosnell, 143 Mass. 32, 8 N.E. 747. According to the testimony of Roberta she made no objection when advised of the proposed treatment. She was sensible of what the defendant was doing and offered no resistance. She uttered no cry although she knew that Schell was in an adjoining room. The action of the drug was not such as to deprive her of speech or movement. Its effect appears to have been the same as that experienced by her on the previous evening. She had no difficulty in arising from the...
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