Commonwealth v. Stone

• Decision Date: 04 April 1938
• Citation: 300 Mass. 160,14 N.E.2d 158
• Parties: COMMONWEALTH v. MARGARET STONE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 160

14 N.E.2d 158

COMMONWEALTH v. MARGARET STONE.

Supreme Judicial Court of Massachusetts, Bristol.

April 4, 1938

March 7, 1938.

Present: RUGG, C.

J., FIELD, LUMMUS DOLAN, & COX, JJ.

Abortion. Evidence Presumptions and burden of proof.

Pleading, Criminal Indictment. Practice, Criminal, Variance.

Conviction under an indictment charging that the defendant "with intent to procure" a miscarriage of a woman "did unlawfully use a certain instrument upon" her body, required proof beyond a reasonable doubt of the use of an instrument, and was not warranted where although there was evidence that the defendant unlawfully used some means to procure the miscarriage, the only evidence as to the use of an instrument was testimony by a medical examiner respecting an autopsy performed ten days after the alleged act of the defendant which left doubt as to whether an instrument was used; the provision of G.L. (Ter.

Ed.) c. 277, Section 35, as to variance was not applicable.

INDICTMENT, found and returned on November 5, 1937, charging that the defendant "with intent to procure the miscarriage of Margaret Harlan, did unlawfully use a certain instrument upon" her body "and in consequence thereof" she died.

The trial in the Superior Court was before Dowd, J. In this court, the case was submitted on briefs.

T. C. Crowther, for the defendant. F. E. Smith, Assistant District Attorney, for the Commonwealth.

DOLAN, J. The defendant was convicted of unlawfully using an instrument on the body of Margaret Harlan with the intent to procure her miscarriage, in consequence of which she died. G.L. (Ter Ed.) c. 272, Section 19. The case comes to this court 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 first error assigned is based on the denial by the judge of the defendant's motion, made at the close of the evidence, that the jury be directed to return a verdict of not guilty. The specific grounds upon which the claim of error rests are that there was no evidence warranting the jury in finding that the defendant did unlawfully use an instrument as charged upon the body of Margaret Harlan with intent to procure her miscarriage, nor warranting the jury in finding that they were convinced beyond a reasonable doubt that an instrument "was" used upon the body of the deceased by anyone; and that there was no evidence which would warrant the jury in finding that the defendant was guilty of the crime charged in the indictment.

The evidence presented at the trial was sufficient to establish beyond a reasonable doubt that the defendant, with intent to procure the miscarriage of Margaret Harlan, unlawfully used some means or other to that end, in consequence of which the latter died. There was, however, no sufficient evidence to establish beyond a reasonable doubt that the defendant with the intent to procure the miscarriage used an instrument upon the body of Mrs. Harlan as charged in the indictment, unless the testimony given by the medical examiner is sufficient to establish the fact of the use of an "instrument" upon her body.

The medical examiner performed an autopsy on the body of Mrs. Harlan on August 24, 1937, on which day she died. Whatever means the defendant used to bring about the miscarriage were employed by her on or about August 14, 1937. The medical examiner testified that he found conditions which would be consistent with an abortion; that there are various methods of procuring an abortion; that the organs of the deceased showed a great amount of sloughing due to infection; that the condition was one of acute peritonitis, which would be consistent with an induced abortion; that this condition was extensive, of ten to twelve days duration; that "this acute peritonitis was a consistent and adequate cause for the death of" Mrs. Harlan; that the conditions found would not warrant a conclusion that the abortion was induced or caused by an instrument, "because those changes after two days are so great the sloughing will cause the same changes as . . . [he] found"; that "you couldn't come to a definite conclusion, that it was instrumentally induced"; that the progress was such that in the absence of any puncture "it would be practically impossible to come to the conclusion that it was instrumentally done, yet they [the conditions] are consistent with the introduction of something from without"; that "There was no puncture or perforation . . . no proof of any instrument"; that the infection was caused from without and that the introduction of some foreign substance or instrument was a consistent and adequate cause of the condition he observed; and that the condition was not consistent with an abortion induced by the use of drugs. The testimony of the medical examiner that it would be almost impossible under the conditions as he found them to come to the conclusion that the abortion was instrumentally procured and that such conditions would not warrant that conclusion, we think, is not overborne by his testimony that "this infection was induced from without" and that it "was consistent with the introduction of some foreign substance or instrument." Evidence that the condition found was consistent with the introduction of an instrument into the body of the deceased and of the performance of a criminal operation is "no affirmative evidence to prove it." Commonwealth v. Polian, 288 Mass. 494 , 501, and cases cited. This would follow also from the similar rule with regard to such evidence in civil cases where the burden of proof is by but a fair preponderance of the evidence. See DeFilippo's Case, 284 Mass. 531 , 534, 535; Halnan v. New England Telephone & Telegraph Co. 296 Mass. 219 , 223; Robinson's Case, 299 Mass. 499 . Nor is the testimony of the medical examiner that the condition was not consistent with an abortion induced by the use of drugs evidence to prove the unlawful use of an instrument with intent to procure the abortion. That testimony was not inconsistent with his prior testimony that there are various methods of procuring an abortion. In the case of Commonwealth v. Polian, 288 Mass. 494 , 500, a medical expert expressed the opinion without objection that the abortion had been produced by an instrument, and in this respect that case is distinguishable from the present case. We are of opinion that the evidence would not warrant the jury in finding beyond a reasonable doubt that the miscarriage in question was induced by the defendant by the use of an instrument upon the body of the deceased.

The remaining question is whether as matter of law, under the form of the...