Commonwealth v. Lombardo
| Decision Date | 25 March 1930 |
| Citation | 271 Mass. 41,170 N.E. 813 |
| Parties | COMMONWEALTH v. LOMBARDO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Criminal Court, Suffolk County; O'Connell, Judge.
Pasquale Lombardo was convicted of abortion, and he brings exceptions.
Exceptions overruled.
F. T. Doyle, Asst. Dist. Atty., of Boston, for the commonwealth.
D. M. Lyons, of Boston, for defendant.
The indictment charged that the defendant, ‘with intent to procure the miscarriage of Stella Bralobreski, did unlawfully administer and advise and prescribe to her, and did cause to be taken by her, a certain medicine, to wit: pills, a more particular description of which is to the said Jurors unknown.’ On October 14, 1929, he pleaded ‘not guilty.’ On November 7 he filed a motion to quash, and also a motion for a bill of particulars. These motions were denied and the defendant excepted. He also made an oral motion that the Commonwealth be ordered to elect upon which of the methods ‘it will rely to prove the crime’; to the denial of this motion he excepted. He also filed a motion for the direction of a verdict of ‘not guilty’; this motion was denied, subject to his exception. Other exceptions were filed by the defendant. He was found guilty.
The denial of the defendant's motion to quash was right. The motion was not filed until after the plea of ‘not guilty.’ It was then too late to attack the validity of the indictment. At common law, matter in abatement must be pleaded before a plea of ‘not guilty’; after such a plea it is too late to plead in abatement and the same rule applies to a motion to quash. Commonwealth v. Wakelin, 230 Mass. 567, 120 N. E. 209;Commonwealh v. Walsh, 255 Mass. 317, 319, 151 N. E. 300;Cooper v. State, 64 Md. 40, 20 A. 986; State v. Drury, 13 R. I. 540. G. L. c. 278, § 17, which enacts, in so far as here material, that an objection to an indictment for a formal defect apparent on the face thereof shall be taken by demurrer or motion to quash ‘before a jury has been sworn in the superior court,’ does not change the rule. The motion to quash must be filed before the plea of ‘not guilty.’ What would be the effect of such motion seasonably filed, if the jurors were sworn without objection, we need not inquire. In the present case the defendant by his general plea could not of right rely on his motion to quash.
Even if the motion were seasonably filed there was no inconsistency in the indictment: the acts alleged were not different offenses, they were contributing parts of the same crime. G. L. c. 272, § 19. In Commonwealth v. Brown, 14 Gray, 419, 420, 421, the defendant was found guilty under an indictment charging that he used an instrument with intent to cause Susan A. Webster to miscarry, thereby lacerating her womb; that he advised and ordered certain parties named to administer ergot to said Webster ‘and provided the ergot for the purpose, knowing that it was dangerous to life, which ergot she, according to his advice, order and command, took and swallowed into her stomach’; that he thrust his hand into her womb, ‘she being then pregnant with child,’ and thereby gave her mortal injuries; that Webster, ‘by means of so being cut * * * and lacerated with said instruments * * * and by means of having said ergot administered * * * and by means of Brown's hand being so violently thrust into her womb,’ died. In that case there was a motion to quash the indictment, the count being alleged to be ‘double, in various particulars,’ (1) by charging the defendant as principal in using the instrument and as an accessory in administering the ergot; (2) by charging him with three distinct offenses, namely, in procuring the abortion (a) by the use of instruments, (b) by administering ergot, and (c) by violence applied by his hand. It was held that the count was not bad for duplicity. By the statute then under consideration ‘any means whatever’ were inhibited; the same language in substance is contained in G. L. c. 272, § 19. Mr. Justice Merrick speaking for the court in ...
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