Commonwealth v. Carter

• Decision Date: 28 May 1940
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. JOHN A. CARTER & another.

306 Mass. 141

27 N.E.2d 690

COMMONWEALTH v. JOHN A. CARTER & another.

Supreme Judicial Court of Massachusetts, Middlesex.

May 28, 1940

May 6, 1940.

Present: FIELD, C.

J., LUMMUS, DOLAN COX, & RONAN, JJ.

Abortion. Practice Criminal, Requests, rulings and instructions, Joint indictment, Trial of defendants together.

Although Rule 71 of the Superior Court (1932) gives no standing to a motion that a judge, hearing a criminal case without a jury, find the defendant not guilty, in a case where the judge entertained the motion and denied it, the denial was treated by this court as equivalent to a ruling that the evidence warranted a finding of guilty.

A conviction upon trial of an indictment jointly charging two defendants under G.L. (Ter. Ed.) c. 272, Section 19, with the unlawful use of an instrument upon a woman with intent to procure her miscarriage, where conspiracy was not an element of the crime, need not as a matter of law be joint; one defendant might be found guilty on the evidence and the other acquitted.

At the trial of an indictment charging two jointly with the unlawful use of an instrument upon a woman with intent to procure her miscarriage where a charge of conspiracy was not involved, a finding of guilt of one of them, who was present and assisting when the other performed an operation upon the woman which on the evidence might have been for either a legal or an illegal purpose, was warranted by evidence of incriminating statements made by him not admissible against the other defendant; but a finding of guilt of the other defendant was not warranted, there being no evidence that, in performing the operation, he intended to procure a miscarriage: the mere fact that a miscarriage resulted was not evidence of such intent.

INDICTMENT, found and returned on June 27, 1939. The indictment was heard by Fosdick, J., without a jury.

R. T. Bushnell, (J.

Lewiton with him,) for the defendant Nyman.

H. Reinherz, for the defendant Carter. R. H. Bond, Assistant District Attorney, for the Commonwealth.

COX, J. The defendants, who were jointly indicted under the provisions of G.L. (Ter. Ed.) c. 272, Section 19, for the unlawful use of a certain instrument on the body of one Spencer with intent to procure her miscarriage (see G.L. [Ter. Ed.] c. 277, Section 79, Abortion), waived their rights to trial by jury (G.L [Ter. Ed.] c. 263, Section 6, as amended by St. 1933, c. 246 Section 1), and were found guilty by a judge of the Superior Court, by whose order the trials were made subject to the provisions of G.L. (Ter. Ed.) c. 278, Sections 33A-33G, inclusive.

At the close of the Commonwealth's case, each defendant filed a motion for a finding of not guilty. The motions were denied subject to the exceptions of the defendants, and, immediately thereafter, each defendant rested his case without presenting any evidence. Although the judge was not required to rule upon the legal sufficiency of the evidence already introduced to support a finding or findings against the defendants until all the evidence had been closed on both sides, Commonwealth v. Bader, 285 Mass. 574, 575-576, it appears from the transcript of the evidence that the judge entertained the motions and that his denial of them was based upon his conclusion that prima facie cases had been made out. The denial of the motion of the defendant Carter is the only error assigned as ground for his claim of appeal. The defendant Nyman, however, at the close of all the evidence, requested rulings, which were denied, that (1) upon all the evidence there must be a finding of not guilty, and (2) the evidence is not sufficient to warrant a finding of guilty against him.

The denials of Nyman's motion, hereinbefore described, and of his requests for rulings subject to his exceptions are the only errors assigned by him.

So much of Rule 71 of the Superior Court (1932) as provides that the question whether the court shall order a verdict shall be raised by a motion and not by a request for instructions has no application to hearings without jury in either civil or criminal cases. Fisher v. Drew, 247 Mass. 178 , 181. Forbes v. Gordon & Gerber, Inc. 298 Mass. 91 , 94-95. The statement in Commonwealth v. Dawn, 302 Mass. 255 , 262, to the effect that the question of the sufficiency of the evidence to sustain an indictment should be raised by a motion for the "finding" of not guilty, is applicable to jury trials but not to trials without jury, as clearly appears from the case of Commonwealth v. Polian, 288 Mass. 494 , 500, which is cited in the Dawn case. See Forbes v. Gordon & Gerber, Inc. supra. The motions that were filed in the case at bar had no standing as such. But the denial of such motions (if we may treat them as requests for rulings) is equivalent to a ruling that the evidence warranted a finding against the defendants, Commonwealth v. Hull, 296 Mass. 327, 329, and upon this basis only are they considered. Forbes v. Gordon & Gerber, Inc. supra. Boyas v. Raymond, 302 Mass. 519 , 521, and cases cited.

The defendants are jointly indicted but it does not follow from this that both defendants must be found guilty. In Commonwealth v. Griffin, 3 Cush. 523, 525, the general rule was stated to be that, in every indictment against two or more, the charge is several as well as joint; in effect, that each is guilty of the offence charged; so that, if one is found guilty, judgment may be passed on him although one or more may be acquitted. In Commonwealth v. Slate, 11 Gray, 60, 63, it was stated that there can be no question as to the propriety of convicting one and acquitting another of defendants indicted jointly when the charge does not involve from its character, as in the case of a charge of conspiracy or riot, the united act of two or more individuals to constitute an offence in either (as was also pointed out in the Griffin case), and that in all other cases the joinder of two or more persons in an indictment does not require that all should be found guilty or none. Commonwealth v. Brown, 12 Gray, 135. Commonwealth v. Cook, 12 Allen, 542. Commonwealth v. Darling, 129 Mass. 112 . Commonwealth v. Gavin, 148 Mass. 449 .

We are of opinion that there was no error as to Carter. It could have been found that on June 6, 1939, he had a telephone conversation with one Meyer, a "practical" but unregistered nurse, the substance of which was that he wanted her on a "clean-out" case for the following day, and that arrangements were then made to have the operation performed at Mrs. Meyer's home. Although Mrs. Meyer testified that Carter told her "it is Dr. Nyman's case," the entire conversation was limited by the judge to Carter and ruled inadmissible as to the defendant Nyman. On the following day, the Spencer girl, hereinafter referred to as the deceased, went, in company with another girl, to the office occupied by both defendants, where they found Nyman who gave the deceased a "Nembutal" capsule. The evidence does not disclose the composition of the contents of this capsule or the purpose for which they are used. Carter appeared a little later and the defendants and the two girls went to Mrs. Meyer's house, where an operation was performed on the deceased. Mrs. Meyer had made preparations by setting up what she described as a table that had been her uncle's, who was a doctor, and by preparing a kettle of boiling water. When the defendants and the two girls arrived certain instruments were placed in the boiling water and thereafter Carter administered ether to the deceased, and Nyman, using an instrument described as a "curette" proceeded with the "cleaning out" as described by the witness Meyer. In the afternoon, the deceased, in company with her female companion and a young man who had been seeing her "three or four times a week" previously, went to a hotel in Boston where the deceased remained over night. Early the next morning she telephoned the female companion, who went to the hotel and remained there all day. In the afternoon, in response to a telephone call, Mrs. Meyer arrived, took the deceased's temperature, which she found to be 102 degrees, gave her a douche and placed a cold cloth on her head. Later on Mrs. Meyer telephoned to Carter and told him that the deceased was very sick and where she could be found. Carter asked: "What in hell is she doing there?" He also said: "I will tell Dr. Nyman when he comes in to go out there." The judge had already ruled that Mrs. Meyer's testimony was admissible only as to Carter, but at this point in the trial counsel for Nyman inquired as to the status of the answer just quoted, whereupon the judge asked the assistant district attorney if it was the "position of the Commonwealth that at the time of the doings in the . . . [hotel] and thereafter the alleged abortion had already been accomplished?" The assistant district attorney replied that it was, whereupon the judge said: "Apparently, if there were a conspiracy to commit an abortion, the conspiracy had been brought to an end by the termination of the abortion. . . . I understand the Commonwealth's position to be that the abortion that it is claimed here was performed constituted all those doings at Mrs. Meyer's house on the seventh of June," and he excluded "for the present . . . that testimony so far as it includes Dr. Nyman in what Dr. Carter is said to have said." Carter went to the hotel and there was evidence, limited to him, that while there he said to the deceased something like, "If anything should happen, or if anything should come of this, you did this yourself," and that he was not at fault. He also said to the girl companions of the deceased, who were present in the latter's room, that "if anything should come up to use fictitious names." There was further...