Commonwealth v. Hebert

• Decision Date: 09 October 1928
• Citation: 264 Mass. 571,163 N.E. 189
• Parties: COMMONWEALTH v. HEBERT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 571

163 N.E. 189

COMMONWEALTH

v.HEBERT.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 9, 1928.

Appeal from Superior Court, Hampden County; William A. Burns, Judge.

George J. Hebert was convicted of performing an illegal abortion resulting in death, and he appeals. Affirmed.R. P. Stapleton and Frank Hurley, both of Holyoke, for appellant.

Charles R. Clason, Dist. Atty., of Springfield, and Clifford S. Lyon, Asst. Dist. Atty., of Holyoke, for the Commonwealth.

CARROLL, J.

The defendant was found guilty upon an indictment which charged that he, ‘with intent to procure the miscarriage of Eva G. Lyman, did unlawfully use a certain instrument upon the body of said Eva G. Lyman, and in consequence thereof the said Eva G. Lyman died.’

[1] The first assignment of error concerns the denial of the defendant's motion for a postponement or continuance of the trial. The motion alleged that newspapers within the county of Hampden published a comment made by the presiding judge, it was contended, in sentencing a defendant who had been convicted of performing an illegal abortion. The motion alleged that the statement of the judge as reported in the newspapers was:

‘That it should be known throughout the state it has been heard that illegal operations of this kind have been performed frequently in this county and that it should be made clear that people who performed them are to be dealt with according to the statutes of Massachusetts.’

This motion for a continuance of the case or the postponement of the trial was addressed to the judicial discretion of the judge. It is not shown that this discretion was abused, and his decision on the question is not to be reversed. Commonwealth v. Capland, 254 Mass. 556, 559, 560, 150 N. E. 869;Commonwealth v. Friedman, 256 Mass. 214, 152 N. E. 60.

The defendant filed a motion for a bill of particulars, requesting that the commonwealth be required to specify the nature, kind and description of the instrument which the defendant is alleged to have used upon the body of Eva G. Lyman, and also the manner in which the defendant used the instrument. This motion was allowed, and the commonwealth filed a bill of particulars specifying:

‘That the instrument used by the defendant, as far as known to the commonwealth, was an instrument of a particular nature, kind and description unknown to the commonwealth, which was inserted into the person of the deceased by the defendant.’

Thereupon the defendant moved that the commonwealth be required to answer further his original motion for a bill of particulars; this motion after a hearing was denied.

The defendant then filed a motion to quash on the ground that it did not appear by the indictment that the offense was committed within the jurisdiction of the court; ‘that it does not fully and plainly, substantially and formally set forth the nature, kind or description of the said instrument alleged to have been used nor that the same was to the grand jurors unknown;’ that the indictment was bad for duplicity in alleging that an instrument was used without a statement that the nature of the same was unknown to the grand jury. After a hearing this motion to quash was denied.

The indictment charged the defendant with the commission of the crime within the jurisdiction of the court. It alleged that the defendant ‘at Holyoke, in the county of Hampden,’ in order to procure the miscarriage of Eva G. Lyman, did unlawfully use an instrument upon her body and in consequence thereof she died. See Commonwealth v. Snell, 189 Mass. 12, 17, 75 N. E. 75,3 L. R. A. (N. S.) 1019.

The denial of the motion for further particulars was right. In response to the request of the defendant that the commonwealth be required to specify the nature and description of the instrument used, it set out that the nature, kind and description of the instrument were unknown to the commonwealth. It would be idle to compel the commonwealth to describe in detail an instrument unknown to it. If the presiding judge was satisfied that this statement was true, the defendant was deprived of none of his rights by the refusal to allow his motion for further particulars. Commonwealth v. Howard, 205 Mass. 128, 142, 143, 91 N. E. 397;Commonwealth v. Cline, 213 Mass. 225, 226, 100 N. E. 358.

There is nothing contrary to this in Commonwealth v. Sinclair, 195 Mass. 100, 80 N. E. 799,11 Ann. Cas. 217. In that case it was said at page 107 (80 N. E. 801):

‘The indictment did not set out the charge against the defendant with sufficient fullness to deprive him of the right to riquire a bill of particulars.’

It is not disputed that the defendant could as of right under the indictment as drawn demand a bill of particulars, but he could not require the Commonwealth to describe further an instrument of which it had no knowledge. See Commonwealth v. Coy, 157 Mass. 200, 215, 32 N. E. 4;Commonwealth v. Noble, 165 Mass. 13, 15, 16, 42 N. E. 328.

[3] The fourth assignment of error is based on exceptions to the testimony of Dr. Murphy He testified that on the night of March 9, 1928, he was called to the home of Mrs. Lyman and made an external examination of her; that, ‘knowing Mrs. Lyman as I did, having taken care of her in the past, I considered it nothing more than an ordinary miscarriage.’ He was then asked, ‘Did you subsequently reach any diagnosis that differed from that?’ he answered, ‘I did.’ This question was then put: ‘What was the diagnosis that you eventually formed?’ The defendant excepted. Dr. Murphy stated that the next morning he ‘came to the conclusion she had had an illegal abortion, or an abortion of some type or form.’ The judge directed that the word ‘illegal’ be stricken from the answer. Dr. Murphy's testimony showed that he came to the conclusion that the patient was suffering from an abortion, because during the night she had chills, ‘had run a temperature during the night of 103, complained of being cold and there was a very foul odor.’ Dr. Murphy was Mrs. Lyman's physician. His qualifications were not questioned. Without exception, he testified that on March 10 he came to a different conclusion from the one he had first formed. There was no error in permitting him to state what his final diagnosis was; the reasons he gave for this final conclusion were based on his observations and the patient's complaint of cold, although he also testified that he came to the final conclusion independently...