Commonwealth v. Taylor

• Decision Date: 02 March 1882
• Citation: 132 Mass. 261
• Parties: Commonwealth v. Henry Taylor
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

132 Mass. 261

Commonwealth v. Henry Taylor

Supreme Court of Massachusetts

March 2, 1882

Suffolk.

Exceptions overruled.

G. R Swasey, for the defendant.

G Marston, Attorney General, & C. H. Barrows, Assistant Attorney General, for the Commonwealth.

C. Allen J. Endicott & Field, JJ., absent.

OPINION

C. Allen J.

The principal question in this case is whether, under the Gen. Sts. c. 165, § 9, it is a criminal offence to do the acts therein mentioned with intent to procure the miscarriage of a woman who is not in fact pregnant with child. The question arises upon a motion to quash the indictment, which contains no averment of such pregnancy; but it has been argued, and we have considered it, as if it had appeared in evidence on the trial that she was not so pregnant.

A brief examination of the statutes on this subject, in England and in this Commonwealth, leaves no doubt in our minds as to the true construction. Under the St. of 43 Geo. III. c. 58, § 2, it had been held that, in order to constitute this offence, it was necessary that the woman should be with child. Rex v. Scudder, 3 Car. & P. 605. Thereupon the St. of 9 Geo. IV. c. 31, § 13, was passed, which provided in terms for the punishment of acts done with intent to procure the miscarriage of any woman not being, or not being proved to be, then quick with child. This was followed by the St. of 7 Will. IV. & 1 Vict. c. 85, which makes punishable similar acts, with intent to procure the miscarriage of any woman, not mentioning whether she must be with child or not. Under this statute, it was held in Regina v. Goodchild, 2 Car. & K. 293, that a conviction was right, although it appeared, on an examination of the woman's body after death, that she was not pregnant at the time she was operated on. Under this state of things, the Gen. Sts. c. 165, § 9, were passed, adopting substantially the same language as the English statute; and, if there were nothing more to aid in ascertaining the intention of the Legislature, the presumption would be strong that it was intended to adopt the same construction which had been given to the statute in England. Ellis v. Paige, 1 Pick. 43, 45. Rutland v. Mendon, 1 Pick. 154. Commonwealth v. Hartnett, 3 Gray 450.

But this view of the meaning of the statute is made conclusive by a recurrence to the former legislation of Massachusetts. By the St. of 1845, c. 27, the doing of these acts with intent to cause and procure the miscarriage of a woman "then pregnant with child" was made...