Commonwealth v. Adams

Citation127 Mass. 15
PartiesCommonwealth v. Mary J. Adams
Decision Date17 June 1879
CourtUnited States State Supreme Judicial Court of Massachusetts

Suffolk. Indictment in two counts. The second count was as follows: "And the jurors aforesaid for the Commonwealth of Massachusetts, on their oath aforesaid, do further present, that a certain person, whose name and a more particular description of whom are to said jurors unknown, on the eleventh day of November in the year of our Lord one thousand eight hundred and seventy-eight, at Chelsea aforesaid, with force and arms, with the intent to procure the miscarriage of one Anna F. Clark, did unlawfully use some unlawful means to the said jurors unknown, with said intent she the said Anna being then and there pregnant with child. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Anna afterwards, to wit, on the twenty-second day of said November, at Chelsea aforesaid by means of the unlawful means so as aforesaid to the said jurors unknown, in manner and form aforesaid used by said person so as aforesaid unknown, then and there died: against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. And the jurors aforesaid for the Commonwealth of Massachusetts, on their oath aforesaid, do further present, that George A. Ellis Mary Jane Adams and Mary E. Shaw, before the said felony and abortion was committed in manner and form aforesaid, to wit, on the eleventh day of November in the year of our Lord one thousand eight hundred and seventy-eight, with force and arms, at Chelsea aforesaid, did feloniously and maliciously incite, move and procure, aid, counsel, hire and command the said person as aforesaid unknown the said felony and abortion, in manner and form aforesaid, then and there to do and commit: against the peace of said Commonwealth, and the form of the statute in such case made and provided."

In the Superior Court, before the jury were empanelled, the defendant moved to quash the indictment. Colburn, J., overruled the motion. The defendant was then tried, and the jury returned a verdict of not guilty on the first count, and of guilty on the second count, but that the death of Clark did not result from the miscarriage as alleged in the indictment. The defendant alleged exceptions, the substance of which appears in the opinion.

Exceptions overruled.

A. Russ & D. A. Dorr, for the defendant.

G. Marston, Attorney General, for the Commonwealth.

Morton, J. Ames & Lord, JJ., absent.

OPINION

Morton, J.

The defendant seasonably filed a motion to quash the indictment. We need consider it only so far as applicable to the second count, the jury having returned a verdict of not guilty upon the first count.

1. The second count is framed under the Gen. Sts. c. 168, § 3, which provides that "whoever aids in the commission of a felony, or is accessory thereto before the fact, by counselling, hiring or otherwise procuring such felony to be committed, shall be punished in the manner prescribed for the punishment of the principal felon." The count, after averring the commission of the felony by some person unknown, alleges that the defendant "before the said felony and abortion was committed in manner and form aforesaid, to wit, on the eleventh day of November in the year of our Lord one thousand eight hundred and seventy-eight, with force and arms, at Chelsea aforesaid, did feloniously and maliciously incite, move and procure, aid, counsel, hire and command the said person as aforesaid unknown the said felony and abortion, in manner and form aforesaid, then and there to do and commit."

This sufficiently charges the offence of being an accessory before the fact to the felony described. It is clearly insufficient as a charge that the defendant was present aiding and assisting in the commission of the principal felony, and so was a principal in the second degree under the Gen. Sts c. 165, § 9. The word "aid" might be applicable to such a charge, but, taken in connection with the context, and especially with the allegation that the aid was rendered "before the said felony and abortion was committed in manner and form aforesaid," no construction is admissible except that it was intended to, and does, charge that the defendant was an accessory before the fact to the felony. The defendant contends that the indictment is insufficient, because, although it alleges that the principal felon unlawfully used some unlawful means, with the intent to procure an abortion, yet it is not alleged that the defendant incited or procured said acts to be done with a like intent, or with any unlawful intent. But the allegation that the defendant maliciously and feloniously incited and procured the principal to...

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43 cases
  • Commonwealth v. Dascalakis
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 22, 1923
    ...the jury has been impaneled without the express or implied consent of the defendant. Commonwealth v. Kimball, 7 Gray, 328;Commonwealth v. Adams, 127 Mass. 15, 19. A nolle prosequi without the consent of the defendant after the trial has commenced and before verdict has the effect of acquitt......
  • Commonwealth v. Mannos
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 25, 1942
    ...fact has always been recognized. G.L. (Ter.Ed.) c. 274, §§ 2, 3; Commonwealth v. Knapp, 9 Pick. 496,20 Am.Dec. 491;Commonwealth v. Adams, 127 Mass. 15;Commonwealth v. Asherowski, 196 Mass. 342, 82 N.E. 13;Commonwealth v. Kaplan, 238 Mass. 250, 130 N.E. 485;Commonwealth v. Donoghue, 266 Mass......
  • Commonwealth v. Di Stasio
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 28, 1937
    ...Knapp, 9 Pick. 496, 516, 517,20 Am.Dec. 491;Commonwealth v. Brown, 14 Gray, 419, 429;Pettes v. Commonwealth, 126 Mass. 242;Commonwealth v. Adams, 127 Mass. 15, 17;Commonwealth v. Devine, 155 Mass. 224, 29 N.E. 515;Commonwealth v. Asherowski, 196 Mass. 342, 345, 346, 82 N.E. 13;Commonwealth ......
  • Com. v. Ries
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 14, 1958
    ...details of the general plan that make out a conspiracy are proved. Commonwealth v. Meserve, 154 Mass. 64, 27 N.E. 997. Compare Commonwealth v. Adams, 127 Mass. 15; Commonwealth v. Dowe, 315 Mass. 217, 52 N.E.2d 406. See also G.L. (Ter.Ed.) c. 277, 35. Commonwealth v. Hartwell, 128 Mass. 415......
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