Commonwealth v. Nason

• Decision Date: 22 May 1925
• Citation: 252 Mass. 545,148 N.E. 110
• Parties: COMMONWEALTH v. NASON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 545

148 N.E. 110

COMMONWEALTH

v.NASON et al.

Supreme Judicial Court of Massachusetts, Worcester.

May 22, 1925.

Exceptions from Superior Court, Worcester County; W. P. Hall, Judge.

Howard N. Nason and another were convicted of using a rubber tube on the body of a woman, with intent to procure a miscarriage, and they except. Exceptions overruled.C. B. Rugg, Asst. Dist. Atty., and E. G. Norman, both of Worcester, for the Commonwealth.

H. W. Blake and A. T. Bozzdlo, both of Gardner, for defendants.

PIERCE, J.

The defendants, husband and wife, were jointly indicted under G. L. c. 272, § 19, for unlawfully using a rubber tube upon the body of Elizabeth M. Bruneault, with intent to procure her miscarriage, and were arrested on warrants issued under said indictment. The male defendant obtained bail, but the defendant Julia A. Nason did not and had not when, on October 28, 1924, both defendants being in court, the prosecuting officer moved a jury be impaneled to try them for the offense charged. Before any action on this motion the defendant Julia A. Nason presented a petition for a habeas corpus, alleging in substance that she was illegally restrained of her liberty under the warrant issued upon said indictment, because she had already been complained of and held to bail for the same offense in the Winchendon district court and that the proceedings in that court had never been dismissed or otherwise disposed of in her presence or with her consent. The presiding judge granted a writ of habeas corpus returnable to the Supreme Judicial Court in Boston on October 31, 1924, and, subject to the exception of the defendant, ordered the trial to proceed.

[1][2] The offense charged being punishable in the state prison, for more than five years, the district court was without final jurisdiction to make a finding of guilt or innocence which should bind the commonwealth or the defendants. G. L. c. 218, § 26. In such a case the power of the district court is to determine whether or not there is probable cause for charging the person with the crime and if he thinks there is to bind such person over for trial in the Superior Court. G. L. c. 218, § 30. The pendency of such a hearing in the district court is not a ground for quashing an indictment pending the examination, any more than the pendency of an indictment is a good plea in abatement to another indictment or another complaint for the same cause; and this is especially true where, as here, there can be no final judgment in the district court. Commonwealth v. Drew, 3 Cush. 279;Commonwealth v. Cody, 165 Mass. 133, 136, 42 N. E. 575. The cases cited and relied on by the defendants rest upon statute mandates of the state of New York, which find no counterpart in the statutes of this commonwealth. It follows that the defendants suffered no legal harm in being compelled to submit to trial before a decision was had upon the complaint in the district court. Klous v. Judges Municipal Court of the City of Boston (Mass.) 146 N. E. 783.

At the trial the commonwealth introduced testimony tending to show that in May, 1924, one Elizabeth M. Bruneault became pregnant as a result of sexual intercourse with one Louis P. Duffy; that in September Duffy interviewed both the male and female defendants at their home, and, as a result of negotiations taking place at such interviews, brought Miss Bruneault to the defendants' house in the evening shortly before September 12; that after she came there, the defendant Julia A. Nason, with the sanction and approval of the defendant Howard N. Nason, inserted a rubber tube into the body of said Bruneault and performed certain other operations upon her, as a result of which a few days later she was delivered of a child about three months and two weeks advanced from conception.

[3] Louis P. Duffy was a witness for the commonwealth and it appeared ‘that upon the 6th day of October, 1924, he was escorted from his home to the town hall by the chief of police of the town of Winchendon and there interviewed at length by the said chief and a member of the state police as a result of which he signed and made oath to a written statement purporting to set forth the facts of which he had knowledge in the case. Upon the same afternoon complaints were filed by said chief of police in the district court of Winchendon against Julia A. Nason, Howard N. Nason and Louis P. Duffy, and the case against witness Duffy was upon the 23d day of October, 1924, dismissed for want of prosecution.’ In cross-examination Duffy was asked whether he had talked with any one about the case before giving his testimony; he answered that he had not. The cross-examination was concluded just before the noon recess. After court reconvened for the afternoon session he was recalled to the stand by the commonwealth and then stated, in response to the question of the prosecuting officer, that he had talked with others before he gave his testimony. Duffy in cross-examination then said in substance that he did not understand in the morning that he had been asked whether he had ever talked with any one...