Commonwealth v. Morris

• Decision Date: 10 July 1928
• Citation: 264 Mass. 314,162 N.E. 362
• Parties: COMMONWEALTH v. MORRIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 314

162 N.E. 362

COMMONWEALTH

v.MORRIS.

Supreme Judicial Court of Massachusetts, Bristol.

July 10, 1928.

Appeal from Superior Criminal Court, Bristol County.

James B. Morris was convicted of attempted abortion, resulting in death, and he appeals. Affirmed.

F. Vera and W. S. Downey, both of New Bedford, for appellant.

F. E. Smith, Asst. Dist. Atty., of Taunton, and E. J. Harrington, Asst. Dist. Atty., of New Bedford, for the Commonwealth.

BRALEY, J.

[1][2][3] The defendant was indicted, tried and convicted under G. L. c. 272, § 19, for unlawful attempt by the use of a certain instrument upon the body of Mary Sylvia to procure her miscarriage, in consequence of which she died. There were no requests for rulings or exceptions to the instructions by the defendant and the assignment of errors relates to the admission and exclusion of evidence. The uncontradicted evidence for the commonwealth showed that death was due to septic poisoning caused by inflammation and decomposition in the uterus of part of the afterbirth. While an inmate of a local hospital, to which she went on the advice of Dr. Robert, who had been called to her home, she made statements in the presence of the defendant concerning the cause of her condition, which were not admissible as dying declarations under G. L. c. 233, § 64, but which were made in the presence of the defendant in response to questions asked by a policeman, one of the officers charged with the investigation of the case, and taken by a stenographer. It appeared from these statements that being pregnant she went, accompanied by her husband, to the defendant's office, and asked him ‘if he thought it was too late for me to have something, done, and he said, ‘No, I don't think so.’ He inserted something in my vagina and gave me some medicine to take internally. I had pains in my vagina, continual bleeding, and chills. Dr. Morris made one visit. On December 23, my mother called the family doctor, Dr. Robert, who advised me to go to the hospital.' Mrs. Sylvia further said that the defendant inserted ‘something hard that hurt very badly; he placed me on the table; he packed me with gauze. The gauze came out later’; and that her husband paid the defendant for what he had done. There were also present a pathologist, an interne in the hospital, and two police officers, one of whom asked the defendant at the close of Mrs. Sylvia's account ‘if he knew Mrs. Sylvia.’ The accused said, ‘Yes.’ He was then asked, ‘Have you anything to say?’ The defendant answered, ‘Not at all; I have nothing to say.’ The commonwealth introduced evidence that two police officers went to the defendant's office December 26, and asked him if he would accompany them to the hospital as a matter of identification. The defendant replied that he would, and one officer was voluntarily drived by the defendant in his own car to the hospital, the other officer and a stenographer who was with them going in the police department machine, and the interview with Mrs. Sylvia previously described followed. The defendant returned to his office, no warrant for his arrest having issued, and it was not until December...