Commonwealth v. Biggs
| Decision Date | 27 January 1936 |
| Citation | 293 Mass. 235 |
| Parties | COMMONWEALTH v. CLIFFORD H. BIGGS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 6, 1936.
Present: RUGG, C.
J., CROSBY, FIELD LUMMUS, & QUA, JJ.
Arrest. Evidence Admissions.
Practice, Criminal Exceptions, Argument by district attorney.
Evidence that a man suspected of causing an abortion, voluntarily went with two police officers to the bedside of the woman involved, that he was not then under arrest though he might not have been allowed to leave the officers had he tried to do so warranted a preliminary ruling by the judge that he was not under arrest.
That a person not under arrest made no answer when charged with an offence was some evidence of his guilt.
It could not be assumed that the judge at the trial of an indictment had omitted to submit a certain question to the jury if the record did not contain the entire charge.
If the judge at the trial of an indictment omitted to submit a certain issue to the jury, no reversible error was shown where the matter was not called to his attention and no exception to the omission was saved.
At the trial of an indictment for causing an abortion, the defendant had no ground for exception to a statement to the jury by the district attorney,
"When a man commits an abortion he takes a life and therefore a soul," which the judge allowed to stand with a caution to the jury that they should decide the issue on the evidence alone disregarding anything said by either attorney not consistent with it.
INDICTMENT, found and returned on April 9, 1935. The indictment was tried in the Superior Court before Sheehan, J. The defendant was found guilty and alleged exceptions.
E. O. Gourdin, for the defendant. W. M. Gaddis, Assistant District Attorney, for the Commonwealth.
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 the witness 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...
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