Commonwealth v. Polian

• Decision Date: 03 December 1934
• Citation: 288 Mass. 494,193 N.E. 68
• Parties: COMMONWEALTH v. POLIAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

288 Mass. 494

193 N.E. 68

COMMONWEALTH

v.POLIAN.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 3, 1934.

Ralph Polian was convicted of abortion, and he appeals with assignments of error alleged to have occurred at the trial in the superior court.

Affirmed.

Appeal from Superior Court, Middlesex County; Beaudreau, Judge.

W. G. Thompson and R. Spring, both of Boston, for appellant.

F. G. Volpe, Asst. Dist. Atty., of Boston, for the Commonwealth.

LUMMUS, Justice.

The defendant was convicted of using an instrument upon the body of a girl named Berlettie Parker, sometimes called Betty Parker, on April 19, 1934, with intent to procure her miscarriage, in consequence of which she died. G. L. (Ter. Ed.) c. 272, § 19. The case comes here by appeal, with a summary of the record, a transcript of the evidence, and an assignment of errors, under G. L. (Ter. Ed.) c. 278, §§ 33A-33G. The defendant was tried with the young man responsible for the pregnant condition of the girl, one John Marrano, who was convicted of being an accessory after the fact and did not appeal.

The girl went to a hospital on Monday, April 23, 1934, suffering from peritonitis. On Saturday, April 28, the defendant was brought to her room, and she said that he was not the man that had operated on her in a drug store. A police officer then took the defendant out of the room, leaving a physician, a nurse and a police inspector with her. After the inspector had a short talk with her, the defendant was brought in again, and she then said that the defendant was the man that had operated on her in his own drug store. The defendant denied the accusation, and pointed out its inconsistency with her earlier statement. She explained her earlier statement by saying, ‘I didn't want to be a squealer. He told me not to tell.’ The foregoing was not a dying declaration, for there was no evidence that she knew that she was about to die. The accusation, unequivocally denied as it was, was not admissible against the defendant. Commonwealth v. Kosior, 280 Mass. 418, 422, 423, 182 N. E. 852. But it was put in evidence without objection, and the contradictory statements of the girl were emphasized in cross-examination by the defendant's counsel, who is not of counsel in this court. This evidence was referred to in the charge, without giving it definite importance or effect, and no exception was taken to what was said. The essence of the accusation was also contained in the dying declaration later made. No point is open in the absence of an exception and a specific assignment of error. Commonwealth v. McDonald, 264 Mass. 324, 336, 162 N. E. 401.

The condition of the girl became worse, and about eleven o'clock on Sunday morning several inspectors came to the hospital and took a statement from the girl in the presence of the physician and the nurse. The physician told the girl that she was not going to live, that the doctors had given up all hope, and asked her to make a ‘dying confession’ or ‘dying declaration.’ She said, ‘I will.’ The physician asked her, ‘Do you believe you are going to die?’ She answered, ‘Yes.’ An inspector, beginning to examine her by question and answer, said, ‘We want you to know that you are not going to get better. Do you believe that, Betty?’ She answered, ‘Yes.’ One witness testified that the girl said ‘I know I am going to die.’ Early in the examination the girl asked, ‘An I going to have an operation?’ Apparently this question was not answered, but the inspector said, ‘Betty, do you believe you are going to die?’ She answered, ‘Yes.’ A little later, during the examination, she turned to the physician and asked, referring to hopeful assurances given her early in the same morning, ‘Why did you lie to me?’ The nurse answered, ‘We are not supposed to tell you your condition, Betty, but it is necessary now.’ After the statement of the girl had been taken, her mother came in, and the girl said, ‘Mother, I'm going to die. They just told me I was.’ The girl died early Monday morning.

The defendant contends that the admission, under G. L. (Ter. Ed.) c. 233, § 64, of the dying declaration was error. That such a declaration is not admissible unless all hope of recovery has gone from the mind of the declarant, and he speaks under a sense of impending death. Commonwealth v. Brewer, 164 Mass. 577, 582, 42 N. E. 92;Commonwealth v. Bishop, 165 Mass. 148, 152, 153, 42 N. E. 560;Commonwealth v. Turner, 224 Mass. 229, 235, 236, 112 N. E. 864;Commonwealth v. Wagner, 231 Mass. 265, 121 N. E. 25;Commonwealth v. Vona, 250 Mass. 509, 146 N. E. 20;Commonwealth v. Hebert, 264 Mass. 571, 577, 163 N. E. 189;Shepard v. United States, 290 U. S. 96, 54 S. Ct. 22, 78 L. Ed. 196. Wigmore, Evid. (2d Ed.) §§ 1438-1443. In our opinion, the trial judge and the jury could have found that the condition existed which would make the declaration admissible under this rule. For this reason, the defendant's request for a ruling that there was no evidence that the girl, at the time of the declaration, believed that her death was imminent, was properly refused.

The defendant asked other instructions with respect to the dying declaration. Two of them would require the jury to give no weight to it unless they should find beyond reasonable doubt the preliminary facts required to make it admissible. These were rightly refused. It is true that the humane though anomalous practice in this commonwealth gives a defendant a second opportunity, after the judge has found the facts making admissible a confession or a dying declaration, to have it excluded from consideration by the jury if they do not also find those facts. Commonwealth v. Reagan, 175 Mass. 335, 56 N. E. 577,78 Am. St. Rep. 496;Commonwealth v. Brewer, 164 Mass. 577, 582, 42 N. E. 92;Commonwealth v. Bond, 170 Mass. 41, 48 N. E. 756;Commonwealth v. Tucker, 189 Mass. 457, 473-475, 76 N. E. 127,7 L. R. A. (N. S.) 1056. See, also, Coghlan v. White, 236 Mass. 165, 128 N. E. 33;Hart Packing Co. v. Guild, 251 Mass. 43, 46, 146 N. E. 238. Compare State v. Bordeleau, 118 Me. 424,108 A. 464;State v. Compo. 108 N. J. Law, 499, 158 A. 541, 85 A. L. R. 866. But this practice does not change the nature of the question. It is still a question of fact preliminary to the admission of evidence, not one relating to an essential element of the crime charged. Every necessary element of the crime must be proved beyond reasonable doubt, but it does not follow that every piece of evidence must be admissible beyond reasonable doubt.

Rulings at trials have sometimes required proof beyond reasonable doubt of such preliminary facts. Commonwealth v. Brewer, 164 Mass. 577, 581, 42 N. E. 92. More often the quantum of proof has not been stated. Commonwealth v. Burrough, 162 Mass. 513, 514, 39 N. E. 184;Commonwealth v. Cantor, 253 Mass. 509, 512, 149 N. E. 205;Commonwealth v. Madeiros, 255 Mass. 304, 308, 151 N. E. 297, 47 A. L. R. 962. In other jurisdictions, pfoof beyond reasonable doubt has sometimes been required for confessions (Harrold v. Oklahoma (C. C. A.) 169 F. 47, 53, 54,17 Ann. Cas. 868;Whip v. State, 143 Miss. 757, 764, 109 So. 697; see, also, Reg. v. Thompson, [1893] 2 Q. B. 12), as well as dying declarations (Reg. v. Jenkins, 1 Crown Cas. Res. 187, 192; People v. Rulia Singh, 182 Cal. 457, 476, 188 P. 987;People v. White, 251 Ill. 67, 75, 95 N. E. 1036;Lipscomb v. State, 75 Miss. 559, 583, 23 So. 210, 230;State v. Martin, 76 Mont. 565, 573, 248 P. 176). But in our opinion the better view is that even in a criminal case it is enough to prove by a preponderance of the evidence the necessary preliminary facts. Commonwealth v. Robinson, 146 Mass. 571, 580-583, 16 N. E. 452;Scott v. State, 107 Ohio St. 475, 496 et seq., 141 N. E. 19;Hell v. State, 125 Ark. 263, 188 S. W. 801;People v. Guido, 321 Ill. 397, 411, 152 N. E. 149;People v. Bartz, 342 Ill, 56, 62, 173 N. E. 779; Wigmore, Evid. (2d Ed.) § 2550, note 6. See, also, Commonwealth v. Bond, 170 Mass. 41, 48 N. E. 756;Commonwealth v. Russ, 232 Mass. 58, 69, 122 N. E. 176.

Two other request were in substance that an untrue statement in the dying declaration would justify the jury in disregarding it altogether. Another asked an instruction that there was no evidence that any doctor or nurse informed the girl that her death was imminent. Another asked an instruction that if the girl's mind was wandering, at any time during the declaration, the jury would be justified in disregarding it. Still another asked an instruction that if any statements in the declaration were suggested to the girl ‘by the implications in the question put,’ the jury would be justified in disregarding the declaration. The judge was not required to grant any of these requests, however true the proposed instructions may have been. Charges would be endless as well as confusing if a judge could be compelled to call attention to every subsidiary fact and every possible inference. A party has no right to require the judge to argue the case for him. It is for the judge to decide to what extent he will state the evidence and discuss the possible inferences of fact that may be drawn from it. Dahill v. Booker, 140 Mass. 308, 310, 311, 5 N. E. 496,54 Am. Rep. 465;Kenny v. Inhabitants of Ipswich, 178 Mass. 368, 372, 373, 59 N. E. 1007;Old Colony Trust Co. v. Bailey, 202 Mass. 283, 291, 88 N. E. 898, and cases cited; Morrin v. Anning, 205 Mass. 205, 211, 91 N. E. 308;Bourne v. Whitman, 209 Mass. 155, 164, 95 N. E. 404,35 L. R. A. (N. S.) 701;Morrissey v. Connecticut Valley Street Railway Co., 233 Mass. 554, 556, 124 N. E. 435;Mahoney v. Gooch, 246 Mass. 567, 571, 141 N. E. 605;Buckley v. Frankel, 262 Mass. 13, 15, 16, 159 N. E. 459.

In her dying declaration, the girl said that on April 19 she went to the defendant's drug store where the defendant gave her something to drink that made her unconscious;...