Commonwealth v. Sinclair

Decision Date01 April 1907
Citation80 N.E. 799,195 Mass. 100
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Clarence W. Rowley, for appellant.

Michael J. Dwyer, Asst. Dist. Atty., for the Commonwealth.



The motion to quash the indictment was rightly overruled. The question arises only on the first count. This charges following closely the language of Rev. Laws, c. 212, § 15 that the defendant, 'with intent to procure the miscarriage of one Annie M. Russell, did unlawfully use a certain instrument' upon her body. It is in the form prescribed by Rev. Laws, c. 218, § 16. See the Schedule of Forms, under Abortion, No. 2. The only specific objection suggested is that it contains neither a description of the instrument charged to have been used nor an averment that it was unknown to the grand jurors. To this it is a sufficient answer to say that if the charge was not fully, plainly substantially and formally set out, the prosecution was required at the request of the defendant to file a statement of such particulars as might be necessary to give him reasonable knowledge of the nature and grounds of the crime charged. Rev. Laws, c. 218, § 39. This answers all constitutional requirements, and fully protects the rights of the defendant. Com. v. Snell, 189 Mass. 12, 19, 75 N.E. 75, 3 L. R. A. (N. S.) 1019, and cases there cited.

The defendant also moved for a bill of particulars under the statute last referred to, and this motion was denied. This action of the court cannot be justified on the ground that the defendant, having been tried twice before upon this charge, was already in possession of all the information that the prosecution had in reference to the particulars for which he asked. His rights do not depend upon the question whether he is already in possession of the information for which he asks, but solely upon the question whether the charge would be otherwise fully, plainly, substantially and formally set out. If the indictment alone is not sufficiently full to give to the defendant his constitutional rights, he is entitled to a bill of particulars as an absolute right. Com. v. Snell, 189 Mass. 12, 19, 75 N.E. 75, 3 L. R. A. (N. S.) 1019; Com. v. Kelley, 184 Mass. 320, 323, 324, 68 N.E. 346. Nor had the defendant waived his right; for he had made the same request before each of his previous trials. The furnishing of particulars in such a case is a matter of strict right, not within the discretion of the court as it formerly was. Com. v. Wood, 4 Gray, 11; Com. v. Giles, 1 Gray, 466, 469. It becomes necessary therefore to determine whether by this indictment the defendant was informed of the nature of the charge against him with sufficient particularity, or, in other words, whether the indictment would have been good before the passage of Rev. St. 1899, c. 409, in which case it will still be good under the provisions of Rev. Laws, c. 218, § 67.

The complaint is that the indictment did not state the nature, kind and description of the instrument which the defendant was charged with having used, or the way and manner in which he was claimed to have used it. The old precedents of indictments contain averments of these matters, or excuse their absence by stating that they were unknown to the grand jury. Com. v. Thompson, 159 Mass. 56, 33 N.E. 1111; Com. v. Coy, 157 Mass. 200, 214, 216, 32 N.E. 4; Com. v. Tibbetts, 157 Mass. 519, 32 N.E. 910; Com. v. Follansbee, 155 Mass. 274, 29 N.E. 471; Com. v. Corkin, 136 Mass. 429; Com. v. Brown, 121 Mass. 69; Com. v. Boynton, 116 Mass. 343; Com. v. Snow, 116 Mass. 47; Com. v. Jackson, 15 Gray, 187; Com. v. Brown, 14 Gray, 419. In Com. v. Wood, 11 Gray, 85, the instrument was described only as 'a certain metallic instrument'; but the indictment was not objected to on this ground. The gist of the offense charged is the use of an instrument with the specific intent stated; but the description of the instrument and the mode of its use are material to describe and identify the charge. It is true that an indictment for maliciously advising or procuring a woman to take any medicine with intent to procure her miscarriage need not allege what the medicine was or whether it was such as would tend to produce the effect intended. Com. v. Morrison, 16 Gray, 224. Similar decisions have been made in other states. The question is whether the defendant administered or prescribed anything to the woman with the criminal intent charged, and the name of the medicine need be neither averred nor proved. Cartes v. State, 2 Ind. 618; State v. Moothart, 109 Iowa, 130, 80 N.W. 301; State v. Crews, 128 N.C. 581, 38 N.E. 293; State v. Vawter, 7 Blackf. (Ind.) 592; State v. Van Houten, 37 Mo. 357; State v. Reed, 45 Ark. 333; Dougherty v. People 1 Colo. 514; Watson v. State, 9 Tex. App. 237; Cave v. State, 33 Tex. Cr. R. 335, 26 S.W. 503; Rex v. Phillips, 3 Campb. 73; Bishop on Statutory Crimes, § 756. The administering or advising of drugs or the use of any instrument or other means with the prohibited intent are coupled together in our present statute (Rev. Laws, c. 212, § 15); and it is said to be difficult to see why greater strictness should be required in the one case than in the other. This has been intimated in some cases. But there is a manifest difference between the giving or advising of medicine for the purpose of procuring a miscarriage and the use of an instrument for the same purpose. The former perishes in the using; its name, its composition and its potency to bring about the effect intended are all immaterial. Not only is the latter capable of identification and description but its character and the mode of its use ordinarily are the best evidence of the effect intended to be produced. Accordingly the name or description of the instrument and the manner of its use generally will be essential to a complete description of the offense charged. The grand jury was required to state the means used to bring about the abortion, with as much certainty as the nature of the evidence before them would warrant. Com. v. Noble, 165 Mass. 13, 15, 16, 42 N.E. 328. This particularity of allegation will be prima facie of material service to the person indicted in enabling him to understand the charge and to prepare his defense. Com. v. Robertson, 162 Mass. 90, 96, 38 N.E. 25; Com. v. Cody, 165 Mass. 133, 42 N.E. 575. Such averments are necessary at common law, unless excused by an averment that the particulars are unknown to the grand jury. See beside the cases already cited, State v. Quinn, 2 Penn. (Del.) 339, 45 A. 544; Smartt v. State, 112 Tenn. 539, 80 S.W. 586; State v. Smith, 32 Me. 369, 54 Am. Dec. 578; Howard v. People, 185 Ill. 552, 57 N.E. 441; Cochran v. People, 175 Ill. 28, 51 N.E. 845.

Accordingly we are of opinion that the indictment did not set out the charge against the defendant with sufficient fullness to deprive him of the right to require a bill of particulars, and that his motion for such a bill should have been allowed; and this right having been denied to him, he is entitled to a new trial.

We proceed to consider those questions which seem likely to be presented at another trial.

The prosecution was allowed, against the defendant's exception, to put in evidence of the statements made by Annie M. Russell to the physicians who were attending her that she had been operated upon to get rid of her pregnancy and that this had been followed by a miscarriage. These were not dying declarations, and were not admitted as such. They were testified to by the physicians in connection with their opinion as to what she was suffering from when they visited her after the alleged operation, and as a part of the reasons of their opinions, together with the statements which she made to them as her symptoms, sensations and sufferings. It is the general rule that a party cannot prove incompetent facts under the guise of fortifying the opinions of his witness. Peirson v. Boston Elevated Ry., 191 Mass. 223, 233, 234, 77 N.E. 769; Com. v. Tucker, 189 Mass. 457, 479, 76 N.E. 127; Com. v. Leach, 156 Mass. 99, 101, 30 N.E. 163; Hunt v. Boston, 152 Mass. 168, 25 N.E. 82. But the statements to a physician of one's bodily ailments and symptoms, made for the purpose of enabling him to give proper medical advice and treatment by forming an opinion as to the cause of such ailments or symptoms, may be testified to by the physicians in connection with testimoney of the opinion which he formed partly upon such statements. Barber v. Merriam, 11 Allen, 322; Fleming v. Springfield, 154 Mass. 520, 28 N.E. 910, 26 Am. St. Rep. 268; Cronin v. Fitchburg Street, Ry., 181 Mass. 202, 63 N.E. 335, 92 Am. St. Rep. 408. And it is argued by the commonwealth that the statements in question under the circumstances of this case and considered with reference to the rest of the testimony, come within this rule. The claim is that her statement that she had been operated upon to produce a miscarriage was one of the facts upon which the physicians formed their opinion; that such an operation, with its attendant circumstances and consequences, well may be found to be one of the chief producing causes of subsequent suffering and disease; and that the statement of it may be a summing up of the result of many physical causes and effects which scarcely could be stated by an unskilled woman. But this argument was fully considered in Roosa v. Boston Loan Co., 132 Mass. 439; and under the rule there laid down the exception to the admission of this evidence must be sustained.

The witnesses Leen, Lyons and Packard were sufficiently qualified as experts; and their testimony...

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