Commonwealth v. Biggs
| Decision Date | 28 January 1936 |
| Citation | 199 N.E. 532,293 Mass. 235 |
| Parties | COMMONWEALTH v. BIGGS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Sheehan, Judge.
Clifford H. Biggs was convicted of performing an abortion, and he brings exceptions.
Exceptions overruled.W. M. Gaddis, Asst. Dist. Atty., of Boston, for the commonwealth.
E. O. Gourdin, of Boston, for defendant.
The defendant has been convicted of performing an abortion upon a woman by the name of Roach. The only exceptions argued relate to the admission of certain evidence and to the alleged failure to submit to the jury questions arising therefrom, and to a remark of the prosecuting attorney during the final argument.
The Commonwealth called a police stenographer who took notes of an interview in the defendant's presence between police officers and Roach at a hospital to which Roach had been taken following the alleged abortion. Upon objection by the defendant to the stenographer's testimony on the ground that the defendant was under arrest at the time of the interview, the judge excused the jury and took evidence upon the question of arrest. A police officer testified that the defendant had asked to be taken to the bedside; that the defendant was not under arrest; that the defendant rode to the hospital in the back seat between two officers; that the witness did not know whether the defendant could have left the automobile, if he had wanted to do so, or whether he would have allowed the defendant to leave it and escape; that he would ‘have to wait for that situation to arise’; that he had had the defendant wait outside Roach's room at the hospital until Roach was prepared to receive visitors; and that the defendant was then taken to her bedside.
On this evidence the judge ‘ruled’ that the defendant was not under arrest. Even if this be construed strictly as a ruling of law and not merely as a refusal to find an arrest as a fact, it was right. The evidence was equally consistent with the defendant making a voluntary trip to the hospital in company with the officers. Evidence merely that one was riding on the same seat with police officers does not show that he had been deprived of self determination as to his movements, or that he had been caused to believe himself under restraint, or that he had surrendered to the will of the officers. Mowry v. Chase, 100 Mass. 79, 85;Commonwealth v. Merrick, 255 Mass. 510, 513, 152 N. E. 377. Nor was he already under arrest even if it was possible that the officers might have arrested him if he had tried to get out.
In this state of the case, the judge rightly admitted the stenographer's testimony that Roach had stated, in substance, that the defendant had performed an abortion upon her; that the defendant was asked, ‘Did you hear what she said?’ And that his reply was, ‘Yes, sir.’ Under the circumstances his failure to deny the charge might be thought to have some tendency to show guilt. Commonwealth v. Spiropoulos, 208 Mass. 71, 74, 94 N.E. 451;Commonwealth v. Gangi, 243 Mass. 341, 137 N.E. 643.
Later in the trial the defendant gave testimony from which it could have...
To continue reading
Request your trial