Com. v. Smith

• Decision Date: 24 February 1913
• Citation: 100 N.E. 1010,213 Mass. 563
• Parties: COMMONWEALTH v. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 563

100 N.E. 1010

COMMONWEALTH v. SMITH.

Supreme Judicial Court of Massachusetts, Middlesex.

February 24, 1913

COUNSEL

John J. Higgins, Dist. Atty., of Boston, for the Commonwealth.

John J Harvey and Wm. H. Wilson, both of Lowell, for defendant.

OPINION

SHELDON J.

The defendant was charged with having performed an illegal operation upon Katherine Roark, in consequence whereof she died. Her statements to her attending physicians of her bodily ailments and symptoms, made for the purpose of enabling them to give proper medical advice and treatment by forming an opinion as to the cause of such ailments and symptoms, rightly were admitted. Commonwealth v Sinclair, 195 Mass. 100, 108, 80 N.E. 799, 11 Ann. Cas 217. It might be harder to sustain the admission of her further statement to them, not made as a dying declaration under R. L. c. 175, § 65, that an abortion had been recently performed upon her, if the defendant had excepted to its admission (Commonwealth v. Sinclair, ubi supra); but this does not appear. After the defendant's general objection to the admission of anything said by her to Dr. Whelan had been properly overruled, and after a consultation between counsel and the judge, that witness testified without objection that she said that an abortion had been performed upon her in Lowell, and the two last words were ordered stricken out by the judge. The witness then, after describing his own physical examination of her, was asked by the district attorney what was the opinion that he formed as to her condition. The question was not objected to, and the witness answered, 'My opinion was that she was suffering from general peritonitis following a criminal abortion.' The judge said that he did not understand that there was any objection to this answer; the defendant's counsel replied that he objected to the words 'criminal abortion'; the judge ordered the word 'criminal' stricken out; and there was no further objection or exception as to this. The defendant again, a little further on in the examination of this witness, objected and excepted to 'anything upon which he based his opinion'; but that was all, and of course the exception thus taken cannot be sustained.

Dr. Scannell, the other attending physician, also testified without objection that she told him that she had had an abortion done on her on August 4, in Lowell; and the defendant's counsel merely asked to have the words 'in Lowell' stricken out. The witness then was asked, 'Now will you tell us everything that she told you which was important and useful or helpful to you as a basis upon which to form your opinion about her condition and the cause of it?' The defendant saved a general exception to this question and to the answer which had not yet been made; but this general exception cannot be sustained for the reasons already stated. In reply, the witness said among other things that she told him that she had had an abortion performed; but there was no motion to strike this out, although another part of his answer was objected to and upon the objection was ordered stricken out.

It seems plain to us under these circumstances that the defendant did not care to save any specific exception to the admission of this statement; and this was probably because of the clear and explicit direction given by the judge to the jury that the woman's statements to the physicians were not competent to show that an abortion had been performed upon her, or that, if such was the case, the defendant had committed it or in any way participated in it. Accordingly we need not consider whether, under the decision in Commonwealth v. Sinclair, 195 Mass. 100, 80 N.E. 799, 11 Ann. Cas. 217, the admission of this testimony could have been sustained upon the ruling which was made.

The woman's dying declarations, both written and verbal, were admitted in evidence. This was proper. But in these declarations she said that the defendant had performed an abortion upon her, and referred to 'the abortion' in other parts of her declarations. Besides a general exception to the admission of her dying declarations, the defendant specifically excepted to the admission of these statements. He contends that these were merely her opinion or conclusion that what the defendant had done to her had caused her miscarriage and had been done for that purpose and with that intent; and that if she had been a witness she could have stated merely what the defendant had said and done, and that only the jury could have drawn inferences therefrom. Undoubtedly her dying declarations were admissible only to those things to which she could have testified if she had been living and had been sworn as a witness. 1 Greenl. on Ev. § 159. And see the cases collected in 10 Am. & Eng. Encyc. of Law (2d Ed.) 377, and 21 Cyc. 988. But the defendant's contention is not well founded. In common language and in its...