Commonwealth v. Tibbetts

• Decision Date: 03 January 1893
• Parties: COMMONWEALTH v. TIBBETTS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

157 Mass. 519

32 N.E. 910

COMMONWEALTH v. TIBBETTS.

Supreme Judicial Court of Massachusetts.

January 3, 1893

COUNSEL

G.C. Travis, Asst. Atty. Gen., for the Commonwealth.

J.M Day and R.O. Harris, for defendant.

OPINION

ALLEN J.

But two points have been argued. The first is that the criminatory articles and letters found by the officer in the defendant's possession were not admissible in evidence because the officer had no warrant to search for them, and his only authority was under a warrant to search her husband's premises for intoxicating liquors. The defendant contends that under such circumstances the finding of criminatory articles or papers can only be proved when by express provision of statute the possession of them is itself made criminal. This ground of distinction is untenable. Evidence which is pertinent to the issue is admissible, although it may have been procured in an irregular or even an illegal manner. A trespasser may testify to pertinent facts observed by him, or may put in evidence pertinent articles or papers found by him, while trespassing. For the trespass he may be held responsible civilly, and perhaps criminally; but his testimony is not thereby rendered incompetent. Com. v. Dana, 2 Metc. (Mass.) 329, 337; Com. v. Lottery Tickets, 5 Cush. 369, 374; Com. v. Intoxicating Liquors, 4 Allen, 593; Com. v. Taylor, 132 Mass. 261; Com. v. Welsh, 110 Mass. 359; Com. v. Keeman, 148 Mass. 470, 20 N.E. 101. See, also, Com. v. Ryan, 157 Mass. ----, 30 N.E. 364; 1 Greenl.Ev. 254a, 229; 1 Tayl.Ev. § 922; 1 Bish.Crim.Proc. § 246.

The defendant's second point is that three of the counts upon which she was convicted contained no averment that the woman was in fact pregnant, or that the defendant knew, believed, supposed, or suspected that she was pregnant. Under the statute describing the offense neither of these averments was necessary Pub.St. c. 207, § 9; ^[1] Com. v. Jacobs, 9 Allen, 274; Com. v. Taylor, 132 Mass. 261; Com. v. Corkin, 136 Mass. 429; Com. v. McDonald, 5 Cush. 365; Com. v. Starr, 4 Allen, 301, 305. Exceptions overruled.

---------

Notes:

^[1] Section 9 provides: "Whoever with intent to procure miscarriage of a woman, unlawfully administers to her, or advises or prescribes for her, or causes to be taken by her, any poison, drug, medicine, or other noxious thing, or unlawfully uses any instrument or other means whatever with the like intent, or with like intent aids or assists therein, shall, if the woman dies in consequence thereof, be imprisoned in the state prison not exceeding twenty nor less than five years, and, if the woman...