Commonwealth v. Hersey
| Decision Date | 07 April 1949 |
| Citation | 85 N.E.2d 447,324 Mass. 196 |
| Parties | COMMONWEALTH v. EARL G. HERSEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
March 7, 8, 1949.
Present: QUA, C.
J., LUMMUS, RONAN WILKINS, & WILLIAMS, JJ.
Abortion. Practice Criminal, Election; Exceptions: waiver, whether exception saved, whether error harmful; Requests, rulings and instructions; Charge to jury; New trial.
Election. Evidence Relevancy and materiality, Competency, Of criminal proceeding. Witness, Cross-examination, Impeachment. Error Whether error harmful. Waiver. Words, "Conviction.
Section 19, and charging that the defendant unlawfully administered to a woman and advised and prescribed for her and caused to be taken by her a poison, drug, medicine, and other noxious thing with intent on his part to procure a miscarriage, the Commonwealth could not properly have been required to elect which of such alleged acts it would rely upon. At the trial of an indictment against a physician under G. L. (Ter. Ed.) c.
272, Section 19, for treating a woman with intent to procure a miscarriage, evidence of what he did in treating her was material.
Admission of evidence of the presence of certain machines in a physician's office and of their use by him upon a woman was not prejudicial error at the trial of an indictment against him under G. L. (Ter. Ed.) c. 272,
Section 19, for unlawfully administering to her and advising and prescribing for her and causing to be taken by her a poison, drug, medicine and other noxious thing with intent on his part to procure a miscarriage, where the Commonwealth expressly disclaimed seeking a conviction upon any ground other than the use of drugs and the judge charged the jury that that was the only ground of guilt which they might consider.
The exclusion of certain questions asked in cross-examination of a woman at the trial of an indictment against a physician for treating her with intent to procure a miscarriage in violation of G. L. (Ter. Ed.) c. 272,
Section 19, was within the discretion of the trial judge.
No question was presented to this court where, following an exception by the defendant to the admission of testimony at the trial of an indictment, the district attorney stated that he would "waive it" and the defendant requested no further action by the judge: the judge was justified in assuming that the defendant was satisfied by the statement of the district attorney and desired nothing further of the judge.
At the trial of an indictment against a physician for treating a woman with intent to procure a miscarriage contrary to G. L. (Ter. Ed.) c. 272,
Section 19, where the woman had testified that in accordance with instructions of the defendant she had gone to a drug store to get ergotrate and had given the druggist the defendant's telephone number, no error appeared in the admission of testimony by a druggist that he telephoned the defendant and filled a prescription for ergotrate which he sold to the woman.
At the trial of an indictment against a physician for treating a woman with intent to procure a miscarriage contrary to G. L. (Ter. Ed.) c. 272,
Section 19, testimony elicited from the defendant in cross-examination as to his knowledge of the use of certain substances to cause a miscarriage was admissible although he testified he did not use them in treating the woman.
It was not error to impeach the credibility of the defendant at the trial of an indictment against a physician for violation of G. L. (Ter. Ed.) c. 272, Section 19, the penalty for which is a fine and imprisonment, by reading to the jury a portion of a certified copy of a record showing that the defendant previously had been found guilty of the same offence, had been sentenced to pay a fine, and had paid the fine, although that record showed the further facts, not disclosed to the jury, that he had also been sentenced to imprisonment, that the execution of the sentence of imprisonment had been suspended and he had been placed on probation, and that at the end of the probationary period the indictment had been filed.
It is discretionary with the judge at a criminal trial to determine what, if any, parts of the evidence he will discuss in his charge to the jury in addition to giving ample and correct instructions on the law applicable to all branches of the case.
A physician may be found guilty of the offence of unlawfully administering to a woman and advising and prescribing for her and causing to be taken by her a poison, drug, medicine and other noxious thing with intent on his part to procure a miscarriage, contrary to G. L. (Ter. Ed.) c. 272,
Section 19, although there be no proof that a miscarriage actually resulted from his acts.
No abuse of discretion nor error of law was shown in the denial of a motion for a new trial of an indictment against a physician for treating a woman with intent to cause a miscarriage contrary to G. L. (Ter. Ed.) c.
272, Section 19.
INDICTMENT, found and returned on April 9, 1948. The case was tried before Collins, J.
In connection with the eighth assignment of error, the record disclosed that in direct examination of Dr. Cavanaugh, a witness for the Commonwealth, he testified that he examined the woman involved in the case and "took a brief history," which was "similar to the history she gave" in her testimony; that he was then asked to state "the history"; and that the defendant's counsel objected, and, upon the judge's ruling after some discussion that the assistant district attorney might "have it," took an exception. The record then was as follows: "
E. M. Dangel, (L.
E. Sherry & C.
A. George with him,) for the defendant.
B. W. Flynn, Assistant District Attorney, (E.
R. Dewing, District Attorney, & R.
G. Clark, Jr., Assistant District Attorney, with him,) for the Commonwealth.
The defendant, a physician, was found guilty after a trial upon an indictment which was based upon a violation of G. L. (Ter Ed.) c. 272, Section 19, and which charged him with unlawfully administering to a woman and advising and prescribing for her and causing to be taken by her a poison, drug, medicine, and other noxious thing with the intent on his part to procure a miscarriage. The case was tried in accordance with G. L. (Ter. Ed.) c. 278, Sections 33A-33G, as amended by St. 1939, c. 341, and comes here upon the defendant's appeal with an assignment of errors, a summary of the record and a transcript of the evidence.
The evidence would warrant the jury in finding the following facts. A young unmarried woman, suspecting in December, 1947, that she was in the early stages of pregnancy, consulted the defendant telling him that she had heard that he had performed an operation on another woman and thought that he could possibly help her. She gave him the name of the person who sent her to him. He requested her to call the following week, which she did. He examined her and told her she was pregnant. She visited the defendant's office nearly every week until April 2, 1948. She was given injections into her buttocks on three of the early visits. She asked him if he was giving her pituitrin, and he replied that it was something stronger. Pituitrin is a drug frequently used to induce a miscarriage although it could not produce this result unless it was administered more frequently than once a week. Beginning about the middle of January he began to insert some medication into her body. During these treatments she could not see just what he was doing by reason of her position on the examining table. He gave her a capsule to quiet her. She heard a noise similar to rinsing a syringe. After this treatment she paid him $70. He told her to notify him if anything happened. Similar treatments were repeated. After nearly every visit she made subsequent to February 5, 1948, she flowed somewhat, and "sometimes it was a greater amount than others." On one occasion he covered a tampon with a medication which had a dark color and a foul odor, and by the use of forceps inserted it into her body. The next day she began to flow for a period of forty-eight hours. She began to flow again on March 11, 1948, and she telephoned to him. He advised her to get some ergotrate at a drug store and that the druggist could telephone to him and she would obtain this drug. She did so and took the ergotrate. This is a drug that is used to procure a miscarriage. She telephoned the...
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