Commonwealth v. Hamel

• Decision Date: 09 October 1928
• Citation: 264 Mass. 564,163 N.E. 168
• Parties: COMMONWEALTH v. HAMEL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 564

163 N.E. 168

COMMONWEALTH

v.HAMEL.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 9, 1928.

Appeal from Superior Criminal Court, Hampden County; Burns, Judge.

N. Louise Hamel was convicted of unlawfully using an instrument on the body of a certain woman with intent to procure a miscarriage, resulting in death, and she appeals. Affirmed.

R. J. Talbot and J. H. Schoonmaker, both of Springfield, for appellant.

C. R. Clason, Dist. Atty., of Springfield, for the Commonwealth.

CARROLL, J.

The defendant was found guilty upon an indictment charging that she did unlawfully use a certain instrument upon the body of Elizabeth Robbins with the intent to procure a miscarriage, which resulted in the death of said Robbins. One Frosti was tried with the defendant as an accessory before the fact, and found guilty.

[1] The jury could have found on the evidence that the defendant occupied a house in Springfield and had at least two rooms therein for the care of the sick; that she had cared for women recuperating from miscarriages; that Frosti, who had been intimate with the Robbins girl, saw the defendant at her home, told her the girl was pregnant, and asked if she would care for her; that the defendant requested that the girl be sent to her; that on the day following, Frosti and the Robbins girl went to the defendant's house, and after an interview between the defendant and the girl she left the house with Frosti; that later the girl went to the defendant's house and remained there about three days. According to the statement of Miss Robbins just before her death, the defendant inserted into her a rubber instrument ‘six or seven times.’ There was medical testimony that Miss Robbins died of peritonitis caused by an abortion produced by some instrument. We need not review the evidence in detail. The jury were warranted in finding that the defendantperformed an illegal abortion on Miss Robbins while she was at the defendant's house, and that the abortion resulted from the use of an instrument by the defendant on the body of Miss Robbins.

[2] The case is properly before us on the defendant's appeal. A stenographer was sworn and the court announced that the indictment was to be tried subject to G. L. c. 278 and all acts in amendment thereto. Under St. 1926, c. 329, §§ 1, 6, the practice as to trials for murder or manslaughter was extended to proceedings or trials upon indictment or complaint for a felony, by order of the presiding judge. It was decided in Commonwealth v. McDonald, 162 N. E. 401, that trials for felonies other than murder or manslaughter were to be in accordance with the new practice only upon the order of the presiding judge that the trial was to follow this practice. The presiding judge made this order and he specially directed that the trial was to be conducted according to G. L. c. 278, and all acts in amendment thereto. The defendant therefore was not required to proceed according to the former practice and file a bill of exceptions.

Early in the morning of the day Miss Robbins died the defendant was taken to the hospital where Miss Robbins was dying; in the defendant's presence Miss Robbins accused her of having performed the abortion. One of the assignments of error is to the admission of this testimony of the deceased. It appeared that when the condition of Miss Robbins became known to the authorities certain police officers went to the house of the defendant about two o'clock in the morning. One of the police officers testified that at this time he ‘told her [he] was going to take her to the Springfield Hospital to see a girl there that had an abortion performed upon her and stated that Mrs. Hamel had committed the abortion. She said she did not know the girl’; that he said the girl's name was Robbins, and she replied she did not know her; that while the defendant was at the bedside of Miss Robbins she said she knew Mrs. Hamel, that she lived at 503 State street, that Mrs. Hamel ‘put some instrument that looked as if it might be rubber into her; * * * she did it on a number of occasions and she also said she packed her with cotton; * * * she went on the bed pan and that Mrs. Hamel told her that she had lost it’; that she also said that Frosti paid Mrs. Hamel $200. There was testimony that when the defendant saw Miss Robbins at the hopsital the defendant said, ‘Yes, I know that girl. She is a girl that worked at one time in the Woman's Shop;’ that after Miss Robbins had accused the defendant of performing the abortion Mrs. Hamel said, ‘The girl is out of her mind; she don't know what she is talking about.’

The defendant testified that when the officers called at her home one of them said to her ‘she [Miss Robbins] is at the hospital and we want you to come with us'; that she replied she did not want to go and the officer said that ‘[she] must dress up and come.’ She further testified that while at the hospital and before being brought into the presence of Miss Robbins, one of the officers said, ‘We won't make any noise,’ that ‘he turned to [her] and said, ‘You must not do any talking; you must not make any noise.’'

[3] In the first assignment of error the defendant contends there was error in the remark by the presiding judge, ‘This woman [the defendant] was not under arrest; she was not there by compulsion.’ It did not appear that this statement was made in the presence of the jury; it was made while counsel were present at the bench discussing certain aspects of the evidence,...