Commonwealth v. Baldwin

• Decision Date: 21 October 1880
• Citation: 129 Mass. 481
• Parties: Commonwealth v. Elijah M. Baldwin
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

129 Mass. 481

Commonwealth v. Elijah M. Baldwin

Supreme Court of Massachusetts

October 21, 1880

Hampden. Indictment alleging that the defendant, on July 7 1879, at Springfield, unlawfully used a certain instrument in and upon the body of Emma M. Weller, with intent to procure a miscarriage, and thereby caused the death of said Weller. At the trial in the Superior Court, before Gardner, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, the substance of which appears in the opinion.

Exceptions overruled.

G. M Stearns & H. M. Coney, (E. H. Lathrop with them,) for the defendant.

F. H. Gillett, Assistant Attorney General, for the Commonwealth.

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

OPINION

Lord, J.

It is not contended in this case that, during the course of the trial, evidence was either improperly received or improperly excluded, or that any rule of law in relation to the crime itself, or the mode of proof, was erroneously adopted. But the defendant contends that there was a mistrial, because the district attorney, after all the evidence was in, was allowed to argue to the jury that the day on which the offence was committed was a different day of the month from that alleged in the indictment, and testified to by the principal witness.

The indictment alleges the offence to have been committed on the 7th day of the month. The witness testified that the act was committed on the 7th day of the month. It is contended that the defendant had established an alibi by proof that he was out of the State during the whole of the 7th. If there were nothing else in the case upon the question of time, it would be a very harsh rule of law to hold that counsel, in argument to the jury, could not suggest the mistake in a date by a witness, in order to explain apparent inconsistencies in the evidence. But it is by no means all; and when the whole evidence upon the question of time is taken into consideration, it is certain that the witness was designedly or unintentionally wrong either as to the day or as to the fact. He testified that the offence was committed upon the 7th, and that the victim died on the 8th; and gave a circumstantial account of all that took place between the commission of the offence and the death, covering a period of about twenty-four hours. Several witnesses, including the medical attendant, testified that the death occurred upon the 9th day. There was evidence also that the defendant himself was sent for during the last moments of the victim's life, and that he did not arrive at the house till after the death; and he, being a witness, testified that it was upon the 9th that he was called, and went to the house, and found her dead.

In this state of the evidence, it is apparent that it was the duty of the government officer to contend that the offence was committed upon the 8th, not necessarily to avoid the alibi which the defendant had set up, but in order to reconcile the apparent conflict in the evidence offered by the government. The defendant had no right to contend that the government was bound by the time stated by the witness, and estopped to contend that it was on any other day; and time is never necessarily to be proved as laid, except where it is an element of the offence. Nor is it a hardship to the defendant. It may be that he does not derive the benefit from...