Commonwealth v. Follansbee
| Decision Date | 06 January 1892 |
| Citation | 29 N.E. 471,155 Mass. 274 |
| Parties | COMMONWEALTH v. FOLLANSBEE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The requests to charge refused were as follows First, under thisindictment the government can claim or have a conviction on but one count; third, as, if death had ensued, there could have been but one offense, no more can be claimed in this case, where death is not claimed; fourth Maud Stewart (who testified that she bought the ether which defendant used in the operation) is in law an accomplice fifth, so also is Ida Stewart; eleventh, there has been no testimony offered by the government or put into the case which, in legal character and quality, is corroborative of either of the Stewarts, etc. Each of the five counts of the indictment sustained by the trial court charged that defendant on each of five different days committed malpractice on one Ida C. Stewart.
A.E. Pillsbury, Atty. Gen., and G.C. Travis, Asst. Atty. Gen., for the Commonwealth.
G.W. Searle, for defendant.
1. The only ground relied on in the defendant's brief, in support of the motion to quash the indictment, is that it was not averred in the second count that the woman was pregnant. Such an averment is unnecessary. Com. v. Taylor, 132 Mass. 261.
2. It was within the discretion of the presiding justice to refuse to exclude the witnesses not under examination from the court-room. The authorities on this subject are collected in 1 Greenl.Ev. (14th Ed.) § 432, and in 1 Bish.Crim.Proc. (3d Ed.) § 1189.
3. The testimony of Dr. Haskell was rightly admitted. It related to the condition of Ida C. Stewart 10 days after the act alleged to have been done by the defendant. Similar evidence was admitted in Com. v. Wood, 11 Gray, 85, although in that case a month had elapsed between the operation and the time the witness testified to.
4. The several counts of the indictment set forth separate offenses, which were properly joined in one indictment, and upon one or more of which it was competent for the jury to find the defendant guilty. Com. v. Brown, 121 Mass. 69. The first and third requests for instructions were properly refused, and there was no error in the indictment given.
5. It is well settled in this commonwealth that, on an indictment of this kind, the person on whom the operation is alleged to have been performed is not an accomplice. Com. v Wood, 11 Gray, 85; Com. v. Boynton, 116 Mass....
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