Commonwealth v. Cantor

• Citation: 149 N.E. 205,253 Mass. 509
• Parties: COMMONWEALTH v. CANTOR.
• Decision Date: 21 October 1925
• Court: United States State Supreme Judicial Court of Massachusetts

253 Mass. 509

149 N.E. 205

COMMONWEALTH

v.CANTOR.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 21, 1925.

Exceptions from superior Criminal Court, Worcester County; W. H. Whiting, Judge.

Ida Cantor was convicted of using instruments on the body of a named person with intent to procure her miscarriage, in consequence whereof she died, and defendant excepts. Exceptions overruled.C. B. Rugg, Asst. Dist. Atty., of Worcester, for the commonwealth.

W. M. Quade, of Gardner (C. E. Tupper, of Worcester, on the brief), for defendant.

SANDERSON, J.

[1][2][3] The defendant was convicted of the crime of using certain instruments upon the body of Wanda Szidzewicz with intent to procure her miscarriage, in consequence whereof she died. The commonwealth offered in evidence a statement of the deceased as a dying declaration. The presiding judge, in the absence of the jury, heard evidence which justified him in admitting the declaration. He then told the jury, in substance, that he had found the statement to be a dying declaration and relevant and material to the issue, but that it was for them to determine whether it was a dying declaration within the law as he would explain the matter to them, and that unless they so found, they were not to consider it in any way; but if they did find that it was a dying declaration, they were to give it such weight as they thought it entitled to. The defendant excepted to this instruction, objecting more specifically to the part in which the judge said that the statement was a dying declaration. The statute prohibiting the court from charging in respect to matters of fact applies to the charge only. G. L. c. 231, § 81. During the rest of the trial it has the same right concerning matters of fact that existed before the statute was adopted. Partelow v. Newton & Boston Street Railway, 196 Mass. 24, 81 N. E. 894. But the statement was not objectionable, whether made during the trial or in the charge. Where the law requires a judge to make a preliminary finding of facts it is proper for him to state his finding to the jury. Commonwealth v. Brown, 14 Gray, 419;Commonwealth v. Robinson, 146 Mass. 571, 16 N. E. 452;Commonwealth v. Brewer, 164 Mass. 577, 42 N. E. 92;Commonwealth v. Bishop, 165 Mass. 148, 42 N. E. 560;Commonwealth v. Rogers, 181 Mass. 184, 63 N. E. 421. In the charge, full and accurate instructions as to the admissibility of such declarations were given, to which no exception was taken, and the final responsibility of deciding the questions relating thereto was placed upon the jury. No prejudicial error appears in connection with this exception.

[4][5] The defendant offered to prove that when arrested she asked the arresting offier what she was arrested for and then told him what she was arrested for and then told him that she was innocent of the alleged crime. The ruling of the trial judge excluding this testimony was right. The statement if made was merely self-serving. The statute giving an accused person the right to know from the officer the grounds on which the arrest is made, does not make her conversation with him competent at her trial. G. L. c. 263, § 1.

No reversible error is disclosed by the record in connection with the use, by the witness Stapleton, of a memorandum to refresh his recollection. The only ground of objection alleged is that the witness was reading the memorandum instead of refreshing his memory from it. But the record shows that he was making a proper use of it under the direction of the court.

[6] The defendant contends that a medical witness was improperly permitted to give an opinion as to the intent with which the instruments introduced into the body of the deceased were used. But this is not the import of the questions asked. The witness was the medical examiner who had performed an autopsy on the body of the deceased and found no evidence of violence outside or in. He had also testified to a statement made by her to the effect that the defendant had used instruments to procure her miscarriage. He was then permitted to answer, in reply to a question by the district attorney, that the conditions which he found at the autopsy were consistent with the use of instruments with intent to procure an abortion. The commonwealth was within its rights in asking the question. It did not call for any opinion as to the intent with which the act was done, nor even for an opinion whether instruments were used or an abortion performed. Evidence tending to show that there was nothing in the conditions disclosed at the autopsy inconsistent with the theory of the case based upon the other testimony offered by the commonwealth was competent. Unless such a question were asked the jury...