Commonwealth v. Felch

• Decision Date: 04 January 1882
• Citation: 132 Mass. 22
• Parties: Commonwealth v. Sylvester S. Felch
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

132 Mass. 22

Commonwealth v. Sylvester S. Felch

Supreme Court of Massachusetts

January 4, 1882

Argued November 21, 1881

Suffolk. Indictment charging the defendant with an attempt to procure the miscarriage of Mary Ann Finley, on July 2, 1881, at Boston, by the use of some instrument to the jurors unknown and that in consequence thereof the said Mary died on the same day.

At the trial in the Superior Court, before Staples, J., it was contended by the defendant that the operation was performed by Mary on herself; and there was evidence tending to show that it would have been possible for her to perform the operation on herself, considered as an operation, using for the purpose an ordinary lead-pencil.

The defendant called one Hughes as a witness, and offered to prove by her that, in the month of June next preceding the time of the alleged offence, Mary told her that she was pregnant by one Edward Titcomb, and that if Titcomb did not perform an operation to procure a miscarriage, or get some one to do so, she should perform the operation on herself with a lead-pencil. It appeared that said declarations neither accompanied nor were explanatory of any act then done by her.

The judge ruled that the evidence offered was not competent for any purpose, and excluded it.

The jury returned a verdict of guilty; and the defendant alleged exceptions.

Exceptions overruled.

H. J Boardman & C. Blodgett, for the defendant.

G Marston, Attorney General, for the Commonwealth.

OPINION

Lord J.

The evidence tendered by the defendant in this case is what is recognized as hearsay evidence. Such evidence is generally inadmissible. There are, however, several exceptions to this rule, and it is contended by the defendant that this evidence may properly be brought within some one of them. The only exception particularly designated is that relating to pedigree. This is indeed one of the well-recognized exceptions to the general rule. That which is technically hearsay evidence is competent evidence upon a question of pedigree.

It is not easy to see how any question of pedigree can be involved in this case. Indeed, the defendant's claim is, that the particular fact to which the testimony related was a matter of pedigree. It is not enough that the declarations tendered may relate to some question of pedigree, nor is it enough that a question of pedigree may be relevant and pertinent to the issue. The exception to the inadmissibility of hearsay evidence because it relates to pedigree is only when the question of pedigree is itself in issue. When declarations in relation to pedigree are proved to have...