Commonwealth v. Dawn

• Decision Date: 16 February 1939
• Citation: 19 N.E.2d 315,302 Mass. 255
• Parties: COMMONWEALTH v. DAWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

302 Mass. 255

19 N.E.2d 315

COMMONWEALTH

v.DAWN.

Supreme Judicial Court of Massachusetts, Berkshire.

Feb. 16, 1939.

Summary of Record from Superior Court, Berkshire County; Hurley, Judge.

Evelyn Dawn was convicted of unlawful use of an instrument on body of a woman with intent to procure a miscarriage, and she filed claim of appeal.

Affirmed.F. E. Smith, Asst. Dist. Atty., of Taunton, for the commonwealth.

J. S. Seligman, of Fall River, for defendant.

DONAHUE, Justice.

The defendant was tried on an indictment which charged that she, with intent to procure a miscarriage, unlawfully used an instrument upon the body of a woman and that in consequance thereof the woman died. G.L.(Ter.Ed.) c. 272, § 19. The defendant waived a trial by jury and was tried before a judge of the Superior Court who found her guilty. The case of one Wood, indicted as an accessory after the fact to the crime charged against this defendant, was tried with the defendant's case and he also was found guilty. The defendant filed a claim of appeal and her case comes before us on a summary of the record, a transcript of the evidence and seventeen assignments of error. The case was here submitted on briefs.

The deceased was twenty-three years old, unmarried, and lived with her parents in Fall River. She had been ‘keeping company’ with one Lewis for about three and a half years. In early September, 1936, she became aware that she was pregnant and talked about the matter with Lewis. On the evening of October 27, 1936, Lewis drove her in an automobile to a house in South Swansea, owned and occupied by the defendant, who was a trained nurse. The deceased entered the house alone and shortly after came out and was driven away by Lewis. The defendant up to that time did not know and had never seen the deceased. At about nine o'clock in the evening of November 3, 1936, the deceased and Lewis again went to the defendant's house and this time both went in. In response to a question by Lewis the defendant said that she was the woman with whom the deceased had an appointment. Lewis went away leaving the deceased in the house. The following evening Lewis went again to the defendant's house and stayed some time. The deceased was in bed. He heard her make exclamations of pain. Thereafter he visited the house five or six times while the deceased was there. A brother of the deceased went to the house of the defendant on November 8, 1936, saw his sister in bed there, and talked with the defendant. The defendant said that the deceased was getting along all right, and that she had removed part of a fetus and would try to remove more on the following day. She advised that the deceased should not be taken home for two or three days. On the evening of the eleventh of November the deceased's brother and father took her home. The defendant went with them and gave the patient general nursing care. She came back again the next morning and said she thought the patient was all right. She returned on the evening of the same day and told the brother to call a doctor, whom she named. The brother was unable to reach the doctor mentioned and called another physician who ordered that the deceased be taken to a hospital, where she died on November 17, 1936.

The medical examiner for the district in which the death occurred, who performed an autopsy on the body of the deceased on the day of her death, was called as a witness by the Commonwealth. He testified at some length as to what he did and what he observed in performing the autopsy. Briefly stated, he testified that he found a one-quarter inch puncture wound in the top of the uterus and, just below the wound, evidence of a septic condition of a portion of the placenta and a condition of sepsis elsewhere in the contents of the abdominal cavity which, in his opinion, originated in the vicinity of the puncture wound, at a time between nine and twelve days before the death; that it was impossible to determine the stage of pregnancy; that in his opinion the puncture wound could have been caused only by the introduction of a foreign instrument into the uterus; that the death resulted from general sepsis associated with purulent peritonitis; and that this condition, which caused the death, was due to instrumental interference with pregnancy.

1. The first assignment of error is based on exceptions to opinion testimony of the medical examiner. The defendant contends that he was not shown to possess the qualifications to be permitted to testify as an expert witness. He testified that he had been medical examiner for over six years, and for thirty-nine years had been in general practice as physician and surgeon particularly in the line of obstetrics. The decision of the preliminary question whether the witness was qualified to give expert testimony was for the trial judge. The decision of the judge was conclusive since we cannot say on the evidence that it was erroneous as matter of law. Commonwealth v. Spencer, 212 Mass. 438, 448, 99 N.E. 266, Ann.Cas.1913D, 552;Jordan v. Adams Gas Light Co., 231 Mass. 186, 189, 120 N.E. 654; Lenehan v. Travers, 288 Mass. 156, 159, 192 N.E. 495;Adams v. Town of Bolton, Mass., 9 N.E.2d 562, 111 A.L.R. 856.

2. The second assignment of error rests on an exception to the admission of the testimony of the medical examiner that certain knitting needles exhibited to him when on the witness stand by the district attorney were of a type and kind capable of causing an abortion by their introduction into the uterus of a pregnant woman. They were marked for identification and later, on the admission by the defendant that they were found in her house after the death of the deceased, they were introduced in evidence. A qualified medical expert, who has found in a woman conditions indicating that there was been an abortion by instrumental means, may give his opinion as to the kind of an instrument that would produce the conditions found. Commonwealth v. Sinclair, 195 Mass. 100, 109, 80 N.E. 799,11 Ann.Cas. 217. His knowledge of anatomy and his professional experience give him a capacity to express an opinion in matters ‘beyond the range of general knowledge.’ Commonwealth v. Brown, 121 Mass. 69, 81;Guinan v. Boston Elevated Railway, 267 Mass. 526, 527, 167 N.E. 247. There was no error in the admission of the testimony of the medical examiner that the needles in question were capable of causing an abortion.

3. The third assignment of error is the refusal of the judge to strike out the answer of the medical examiner on cross-examination to the question ‘Do you want to leave it * * * that it is not a necessary thing to do at all in an autopsy to examine the blood?’ The answer was, ‘I believe the evidence first, without microscopic examination.’ Just prior to this the witness had answered a similar question in the negative and immediately afterwards testified that he made no examination of the blood. The defendant could in no way be prejudiced by the refusal of the judge to strike out the answer to which exception was taken.

4. The fourth assignment of error was waived by the defendant.

5. The error alleged in the fifth assignment was the exclusion of the question put to the medical examiner on cross-examination: ‘Is it possible for a woman to use a drug, such as ergot or pills containing ergot or other drugs, to abort herself?’ The district attorney objected to the question and there followed a discussion between the judge and counsel for the defendant. Counsel said that he based the question upon a statement which, he asserted, was made by the deceased as shown by the record of the hospital where she was under treatment for a period preceding her death. In reponse to a question from the judge he said his contention was not that the statement was admissible as a dying declaration but that it was admissible because it was made to a physician under whose treatment she then was. The physician referred to was not called as a witness.

If we consider what counsel said as an offer of proof of what the physician if called would testify, the question was not competent. It was based by counsel on the erroneous assumption that a physician could testify to a statement made to him by his patient as to the cause of the patient's condition. A physician, when a witness, may in his testimony repeat statements made to him by a patient as to the patient's injuries, bodily or mental ailments, pains, symptoms, feelings or conditions, as the basis of an opinion formed by him and expressed by him on the witness stand. He cannot, however, testify as to a statement, made to him by the patient, of the cause of the patient's injuries or condition when the statement is not made in such circumstances as to make it admissible as a dying declaration. Commonwealth v. Sinclair, 195 Mass. 100, 108, 109, 80 N.E. 799,11 Ann.Cas. 217;Roosa v. Boston Loan Co., 132 Mass. 439;Chapin v. Marlborough, 9 Gray 244,69 Am.Dec. 281;Commonwealth v. Morris, 264 Mass. 314, 317, 162 N.E. 362.

6. The ground of the sixth assignment of error is the action of the...