Commonwealth v. Polian
| Decision Date | 01 December 1934 |
| Citation | 288 Mass. 494 |
| Parties | COMMONWEALTH v. RALPH POLIAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 8, 1934.
Present: RUGG, C.
J., CROSBY, PIERCE DONAHUE, & LUMMUS, JJ.
Practice, Criminal Appeal with assignments of error, Requests, rulings and instructions, Ordering verdict, New trial. Abortion. Evidence, Dying declaration, Presumptions and burden of proof, Competency, Relevancy. Witness, Cross-examination.
Upon an appeal with assignments of error following a verdict of guilty at the trial of an indictment, it was not open to the defendant to content that there was error in the admission of certain evidence with respect to which he had not saved an exception nor specifically made an assignment of error, especially where, after the admission of such evidence, reference thereto was made by the defendant's counsel in cross-examination and by the trial judge in his charge without exception by the defendant, and the substance of the evidence was contained in other evidence admitted.
Upon the record of the trial of an indictment for procuring an abortion, it was held, that a finding was warranted that a statement, which was made by the woman concerned at a hospital after the alleged abortion and shortly before her death and which was offered by the Commonwealth as a dying declaration under G L. (Ter. Ed.) c. 233, Section 64, was made by her in the belief that her death was imminent and that she could not recover. It is not necessary to the admission in evidence under G. L. (Ter. Ed.) c.
233, Section 64, of a dying declaration at the trial of an indictment for procuring an abortion, nor to the consideration thereof by the jury, that the preliminary facts required to make it admissible be proved beyond a reasonable doubt; it is only necessary that such facts be proved by a preponderance of the evidence.
The judge presiding at the trial of an indictment for procuring an abortion could not be required by the defendant to give, with respect to a dying declaration by the woman concerned, admitted in evidence under G. L.
(Ter. Ed.) c. 233, Section 64, instructions to the effect that an untrue statement in the dying declaration would justify the jury in disregarding it altogether; that there was no evidence that any doctor or nurse informed the declarant that her death was imminent; that if her mind was wandering at any time during the declaration, the jury would be justified in disregarding it; and that if any statements in the declaration were suggested to her "by the implications in the questions put," the jury would be justified in disregarding the declaration.
At the trial of an indictment for procuring an abortion, evidence, that the woman concerned went to a back room in a drug store of the defendant, who said to her that he "would operate" for a certain sum, that he gave her something to drink which made her unconscious, and that shortly after her visit to the drug store she was seen in the neighborhood thereof, apparently in an intoxicated condition; together with medical evidence that a certain drug combined with whiskey might make one unconscious for a time and subsequently would produce symptoms of intoxication, that the woman had had an abortion, produced by an instrument, and that she had an infected uterus, such as frequently comes from a criminal operation, resulting in peritonitis, warranted the inference that while she was unconscious in the back room of the drug store the defendant used an instrument to produce an abortion, and warranted a verdict of guilty.
Under Rule 71 of the Superior Court (1932), the question, whether a verdict of not guilty should be ordered at the trial of an indictment, must be raised by the defendant by way of a motion to that effect and not by way of a request for an instruction.
A judge presiding at the trial of an indictment cannot be required to give instructions to the jury with respect to the legal effect of fragments of the evidence.
At the trial of an indictment for procuring an abortion, at which there was evidence that the abortion was performed by means of an instrument, there was no reversible error
(1) In the admission of testimony by a medical expert that the condition of the vagina and uterus of the woman concerned was "consistent with some instrument being pushed up in there" and that a criminal operation could be performed without leaving traces of trauma or laceration; such testimony was admissible to meet an argument, based on testimony that no physical evidences of the use of an instrument upon the woman were found, that the lack of physical traces showed that no such operation had been performed;
(2) In permitting the defendant to be asked on cross-examination whether he knew that a catheter, which was an instrument kept and sold by the defendant in a drug store conducted by him, could be used to produce an abortion, to which question he answered in the affirmative.
No error appeared in the denial of a motion for a new trial of an indictment where there was no abuse of discretion in its denial and the questions of law raised upon the motion were or could have been raised at the trial.
INDICTMENT, found and returned on May 9, 1934, described in the opinion. The indictment was tried in the Superior Court before Beaudreau, J. Material evidence and exceptions saved by the defendant are described in the opinion. The defendant was found guilty and filed an appeal with assignments of error.
W. G. Thompson & R.
Spring, for the defendant.
F. G. Volpe, Assistant District Attorney, for the Commonwealth.
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, Section 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, Sections 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, 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. 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.
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, "I do." The physician, beginning to examine her by question and answer, said, She answered, "Yes." One witness testified that the girl said, "I know I am going to die." Early in the examination the girl asked, "Am I going to have an operation?" Apparently this question was not answered, but an 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." The girl died early Monday morning.
The defendant contends that the admission, under G. L. (Ter. Ed.) c. 233 Section 64, of the dying declaration was error. 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. Commonwealth v. Bishop, 165 Mass. 148 , 152, 153. Commonwealth v. Turner, 224 Mass. 229 , 235, 236. Commonwealth v. Wagner, 231 Mass. 265 . Commonwealth v. Vona, 250 Mass. 509 . Commonwealth v. Hebert, 264 Mass. 571 , 577. Shepard v. United States, 290 U.S. 96. Wigmore, Evidence (2d ed.) Sections 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, ...
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