Commonwealth v. Hoff

• Decision Date: 28 February 1944
• Citation: 315 Mass. 551,53 N.E.2d 680
• Parties: COMMONWEALTH v. HOFF. SAME v. ROBERTS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 551

53 N.E.2d 680

COMMONWEALTH

v.HOFF.

SAME

v.ROBERTS.

Supreme Judicial Court of Massachusetts, Hampden.

Feb. 28, 1944.

Louis L. Hoff was convicted of abortion, and Armand Roberts was convicted as an accessory before the fact to an abortion, and they appeal.

Affirmed.Appeal from Superior Court, Hampden County; Brown, Judge.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and WILKIN, JJ.

Charles R. Alberti, Dist. Atty., of Pittsfield, and A. W. Bettigole, Asst. Dist. Atty., of Springfield, for the Commonwealth.

J. D. Ross and Thomas C. Maher, both of Holyoke, for defendant Louis L. hoff.

Paul Jed, of Holyoke, for defendant Roberts.

WILKINS, Justice.

The defendant Hoff, a physician, was indicted for having on February 13, 1942, unlawfully used a certain instrument upon the body of Rita Goddu, with intent to procure her miscarriage, in consequence whereof she died. The defendant Roberts was indicted as an accessory before the fact. G.L. (Ter.Ed.) c. 272, § 19; G.L.(Ter.Ed.) c. 274, §§ 2, 3. The defendants waived jury trial, were tried before a judge under G.L.(Ter.Ed.) c. 278, §§ 33A–33G, inclusive, were found guilty, and appealed.

1. The defendant Hoff assigns as error the denial of the following request for a ruling: ‘If any statement was made in the presence of the defendant charging, or tending to charge, the commission of the crime set forth in the indictment and such statement was obviously not made upon the personal knowledge of the person making such statement, such a statement would be hearsay, and the defendant was under no obligation to deny the truth thereof and no inference against the defendant may be drawn from his failure to deny.’ This request could not have been granted. There is no requirement in the law of evidence that statements made in the presence of a person no under arrest, to be admissible as evidence of admissions through failure to deny or by reason of an equivocal or evasive response, must have been made on the personal knowledge of the person uttering them. The grounds of the admissibility of such evidence have often been stated and include no such exception. Commonwealth v. Kenney, 12 Metc. 235, 237,46 Am.Dec. 672;Commonwealth v. Brown, 121 Mass. 69, 80;Warner v. Fuller, 245 Mass. 520, 528, 139 N.E. 811;Commonwealth v. Hamel, 264 Mass. 564, 569, 163 N.E. 168;Commonwealth v. Herbert, 264 Mass. 571, 578, 163 N.E. 189. See Commonwealth v. Helfman, 258 Mass. 410, 414, 415, 155 N.E. 448.

2. The defendant Hoff's remaining assignments of error not expressly waived concern testimony of Rita Goddu's mother as to a statement by her daughter admitted as a dying declaration under G.L. (Ter.Ed.) c. 233, § 64, and the denial of requests for rulings respecting the same. It is contended that the statement did not constitute a dying declaration, because a finding was not warranted that at the time it was made Rita Goddu had abandoned all hope of recovery. The testimony was to the effect that on March 3, while the mother was at the hospital, the daughter ‘said she was going to die anyway and she was awful sick. * * * She said she was going to die and she wasn't coming home any more. * * * She told me the Holyoke police had been up to see her and they told her she was going to die anyway and she might as well tell everything * * * so she told them Doctor Hoff operated on her and Armand Roberts had brought her up there. * * * [She] said he brought her up to Holyoke and she went up to Dr. Hoff and he operated on her.’ On cross-examination the mother testified that on March 5 her son, at that time living in Florida, called on the daughter, and in order to cheer her up said that when she got better he would take her to Florida, to which the daughter replied that ‘she would try and get better.’ Rita Goddu died on March 8. We are of opinion that the testimony was admissible. Where, as here, all the evidence is reported, the preliminary finding of the judge may be reviewed. Hasey v. Boston, 228 Mass. 516, 517, 117 N.E. 827. But the judge's findings as to the preliminary facts will not be reversed ‘unless they are unjustifiable or involve some error of law. * * * the action of the trial judge rests upon circumstances which cannot be reflected with reasonable precision upon the printed page.’ Kelley v. Jordan Marsh Co., 278 Mass. 101, 106, 107, 179 N.E. 299, 302. In our opinion, the judge could have found that at the time of her talk with her mother Rita Goddu was certain of approaching death. Commonwealth v. Bishop, 165 Mass. 148, 152, 42 N.E. 560;Commonwealth v. Polian, 288 Mass. 494, 498, 193 N.E. 68, 96 A.L.R. 615. Admissibility is not affected by the fact that on a later occasion or occasions the declarant may have had some hope of recovery. People v. Hoffman, 195 Cal. 295, 308, 232 P. 974;State v. Baxter, 344 Mo. 1034, 1040, 130 S.W.2d 584;State v. Bright, 215 N.C. 537, 540, 2 S.E.2d 541; Wigmore on Evidence, 3d Ed., § 1439. Since the judge sitting without a jury also had the duty of determining on all the evidence the guilt or innocence of the defendants, the defendant Hoff at the close of the evidence properly presented requests seeeking anew to have the dying declaration disregarded. See Commonwealth v. Polian, 288 Mass. 494, 498, 193 N.E. 68, 96 A.L.R. 615. It is contended that the judge did not properly instruct himself on all the evidence as to whether at the time of the statement Rita Goddu had abandoned all hope of recovery. It was undoubtedly the duty of the judge on proper request to lay down the rules for his own guidance, and to follow those rules in making his findings. Castano v. Leone, 278 Mass. 429, 431, 180 N.E. 312;Ashapa v. Reed, 280 Mass. 514, 516, 182 N.E. 859;Codman v. Beane, 312 Mass. 570, 574, 45 N.E.2d 948. Attention is called to the testimony of other witnesses tending to show that on other occasions between March 2 and March 8, one of which was on March 3, the deceased had hope of recovery. Stress is also laid on the fact that members of the Holyoke police who had interviewed her did not testify to any such conversation, and, in fact, gave no testimony of any dying declaration whatsoever, although they tried to get one. Mrs. Goddu's testimony, as a whole, it is argued, does not permit such a conclusion. An issue of fact was thus presented. A plausible inference could have been that Rita Goddu made the same statements to the police concerning her condition and the reasons for it, but did not tell them, as she did her mother, that she was going to die. We are of opinion that there was no error in the refusal of the judge to instruct himself on all the evidence that at the time of the statement to her mother Rita Goddu had not abandoned all hope of recovery. Commonwealth v. Cooper, 5 Allen 495, 497,81 Am.Dec. 762;...