Commonwealth v. Pierce

Decision Date26 November 1884
Citation138 Mass. 165
PartiesCommonwealth v. Franklin Pierce
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Argued September 30, 1884. [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Worcester.

Indictment, in five counts, for manslaughter.

The first count alleged that Franklin Pierce, at West Boylston, in the county of Worcester, "on the seventh day of January, in the year eighteen hundred and eighty-three, and on divers other days and times between that day and the ninth day of January, in said year eighteen hundred and eighty-three, in and upon one Mary A. Bemis of said West Boylston, in the county aforesaid, wilfully and feloniously, did make divers assaults, and that the said Franklin Pierce did then, and at the several times aforesaid, there wilfully, feloniously, ignorantly, rashly, injuriously, and improperly, put, pour, and place, and cause and procure to be put, poured, and placed, on and upon the body, arms, legs, and feet of her, the said Mary A. Bemis, certain large quantities, to wit, two gallons of kerosene oil, and that the said Franklin Pierce, by the means and in the manner aforesaid, did then, and at the several times aforesaid, there feloniously cause her, the said Mary A. Bemis, to be and become mortally sick, weak, shocked, diseased, and disordered in her body aforesaid, of which said mortal sickness, weakness, shock, disease, and disorder of her body, occasioned and brought on by the means and in the manner aforesaid, from the said seventh day of January, in the year aforesaid, until the fourteenth day of said January, in the same year, at West Boylston aforesaid, in the county aforesaid, she, the said Mary A. Bemis, did languish and languishing did live, on which said fourteenth day of January, in the year aforesaid, at West Boylston aforesaid, in the county aforesaid, the said Mary A. Bemis, of the said mortal sickness, weakness, shock, disease, and disorder, occasioned and brought on as aforesaid, died. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Franklin Pierce her the said Mary A. Bemis, in manner and form aforesaid, feloniously did kill and slay, against the peace of the said Commonwealth."

The second count was as follows: "And the jurors aforesaid, on their oath aforesaid, do further present, that said Franklin Pierce, at said West Boylston, in the county aforesaid, on the seventh day of January, in the year eighteen hundred and eighty-three, and on divers other days and times between that day and the ninth day of January, in the year aforesaid, in and upon one Mary A. Bemis, of said West Boylston, in the county aforesaid, wilfully and feloniously, did make divers assaults, and that the said Franklin Pierce did then, and at the several times aforesaid, there wilfully, feloniously, ignorantly, rashly, injuriously, and improperly put, pour, and place, and cause and procure to be put, poured, and placed, in, upon, and through certain underclothing, to wit, certain drawers, undershirt, and stockings, certain large quantities, to wit, two gallons, of kerosene oil, and did then, and at the several times aforesaid, there and thereby, wet and saturate, and cause and procure to be wet and saturated, said underclothing, to wit, said drawers, undershirt, and stockings, with the said large quantities of kerosene oil, and did then, and at the several times aforesaid, there wilfully, feloniously, ignorantly, rashly, injuriously, and improperly, put and place, and cause and procure to be put and placed, on and upon the body, arms, legs, and feet, of her, the said Mary A. Bemis, said underclothing, to wit, said drawers, undershirt, and stockings, so wet and saturated with kerosene oil as aforesaid, and that the said Franklin Pierce did then, and at the several times aforesaid, there wilfully, feloniously, ignorantly, rashly, injuriously, and improperly, cause and procure said underclothing, to wit, said drawers, undershirt, and stockings, so wet and saturated with kerosene oil as aforesaid, to remain on and upon the body, legs, arms, and feet of her, the said Mary A. Bemis, for divers long spaces of time, and that the said Franklin Pierce, by the means and in the manner aforesaid, did then and at the several times aforesaid, there feloniously cause her, the said Mary A. Bemis, to be and become mortally sick, weak, shocked, diseased, and disordered in her body aforesaid, of which said mortal sickness, weakness, shock, disease, and disorder of her body, occasioned and brought on by the means and in the manner aforesaid, from the said seventh day of January, in the year aforesaid, until the fourteenth day of said January, in the same year, at West Boylston aforesaid, in the county aforesaid, she, the said Mary A. Bemis, did languish and languishing did live, on which said fourteenth day of January, in the year aforesaid, at West Boylston aforesaid, in the county aforesaid, the said Mary A. Bemis, of the said mortal sickness, weakness, shock, disease, and disorder, occasioned and brought on as aforesaid, died. And so the jurors aforesaid, on their oath aforesaid, do say that the said Franklin Pierce her, the said Mary A. Bemis, in manner and form aforesaid, feloniously did kill and slay, against the peace of said Commonwealth."

The remaining counts differed but slightly from the preceding, and need not be set forth.

In the Superior Court, before the jury were empaneled, the defendant moved to quash the indictment for the following reasons: "1. The indictment, in the first count thereof, does not aver that the kerosene oil, which is therein alleged to have been put, poured, and placed on and upon the body, arms, legs, and feet of the said Mary A. Bemis, was deleterious, dangerous, or injurious in its nature, or that it was likely to produce the results in said counts alleged to have followed; and said count does not allege that the defendant knew or had reason to know that said kerosene oil was deleterious, dangerous, or injurious in its nature, or that he knew, or had reason to know, that it was likely to produce the results which are in said count alleged to have followed. 2. The indictment, in the second, third, fourth, and fifth counts thereof, does not allege that the kerosene oil, which is therein alleged to have been put, poured, and placed on said underclothing, was deleterious, dangerous, or injurious in its nature, or was likely to produce any dangerous or deleterious results, or that the defendant knew, or had reason to know, that it was deleterious, dangerous, or injurious in its nature, or likely to produce deleterious, dangerous, or injurious results. And said counts do not contain any allegations that the putting and placing said underclothing, wet and saturated with kerosene oil, on and upon the body, arms, legs, and feet of the said Mary A. Bemis, was of deleterious, dangerous, or injurious tendency, or likely to produce the results therein alleged to have followed; nor do said counts contain any allegation that the defendant knew, or had reason to know, the putting and placing said underclothing, wet and saturated as aforesaid with kerosene oil, on and upon the body, arms, legs, and feet of the said Mary A. Bemis, was of deleterious, dangerous, or injurious tendency, or likely to produce the results aforesaid."

Pitman, J., overruled the motion. The defendant was then tried, and found guilty; and a bill of exceptions, in substance as follows, was allowed:

The evidence for the government tended to show that the defendant publicly practised as a physician; that he was called to attend Mary A. Bemis on December 29, 1882, and continued to attend her until January 7, 1883; that on that day, she being very sick and confined to her bed, he prescribed that kerosene oil should be applied to her as follows: that a flannel shirt, flannel drawers, and stockings should be saturated with it, and placed on her, and kept wet by renewing the wet flannels, &c. every three hours; that this was done, with her consent, by her husband and attendants, but not by the defendant personally; that after the defendant had gone, in about two hours, owing to the pain and distress of the patient, and upon her demand, the saturated flannels were removed, and the defendant was sent for.

The husband testified as follows: "On his arrival, I told the defendant how my wife had suffered and what we had done; she said it was as if she was in the fire; he replied that it was doing just what he wanted, like a poultice on a boil, drawing it out; that it was her only salvation. I told him that she would not bear it, and asked him if he would try to persuade her; he said he was too tender-hearted, that it was my wife instead of his; I then talked with her and told her that the doctor said it would not hurt so much the next time; -- finally, she said if he would stay and see the effect she would try it, and I so reported to him, and the flannels were saturated and replaced. The doctor remained until the patient fell asleep. She did not appear to suffer so much as before."

The defendant prescribed that the flannels should not be taken off, but kept wet with kerosene oil by pouring it upon them from a can, and this was done as before by her nurse and attendants, and not by the doctor personally. The flannels, saturated as aforesaid, were kept upon the patient until January 9, 1883, when they were removed by the defendant's direction.

The evidence tended to show that the effect of the kerosene was to blister and burn a large part of the surface of the body removing the scarf skin from two thirds the surface, as estimated by the witnesses, and taking off the true skin over one third the surface of the body,...

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    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 24, 2022
    ...[causes] the death of a human being, is guilty of manslaughter, although he did not contemplate such a result"); Commonwealth v. Pierce, 138 Mass. 165, 175, 180 (1884) (evidence was sufficient to establish manslaughter based on physician's reckless or grossly negligent use of kerosene to tr......
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    ...at common law was, that a man might have to answer with his life for consequences which he neither intended nor foresaw.' Commonwealth v. Pierce, 138 Mass. 165, 178; Commonwealth v. Chance, 174 Mass. 245, 252, 54 N.E. 551. 'The criterion in such cases is to examine whether common social dut......
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1 books & journal articles
  • HABIT, CRIME, AND CULPABILITY.
    • United States
    • Journal of Criminal Law and Criminology Vol. 113 No. 1, January 2023
    • January 1, 2023
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