Commonwealth v. Turner

Decision Date20 May 1916
Citation224 Mass. 229,112 N.E. 864
PartiesCOMMONWEALTH v. TURNER.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Suffolk County; Christopher T. Callahan, Judge.

Augustus W. Turner was found guilty of crime, and excepted. Exceptions overruled.

A. C. Webber, Asst. Dist. Atty., of Boston, for the Commonwealth.

Clarence W. Rowley, Jos. P. Walsh, and John F. Barry, all of Boston, for defendant.

BRALEY, J.

[1][2][3] The indictment charged that in violation of R. L. c. 212, § 15, the defendant with intent to procure the miscarriage of Irene A. Richardson did unlawfully use some unlawful means with said intent, and that in consequence of the use by him of said unlawful means the said Irene A. Richardson died. A verdict of guilty having been returned the case is here on the defendant's exceptions to the admission of evidence, the form of questions, the manner of conducting the trial, the overruling of a motion to strike out a portion of the evidence, to the refusal of his requests, and to the denial of a motion for a new trial. While at common law dying declarations of a deceased person were confined to prosecutions for homicide. St. 1889, c. 100, now R. L. c. 175, § 65, makes such declarations admissible in the prosecution of the crime for which the defendant is indicted. Thayer v. Lombard, 165 Mass. 174, 42 N. E. 563,52 Am. St. Rep. 507;Com. v. Bishop, 165 Mass. 148, 152, 42 N. E. 560;Com. v. Thompson, 159 Mass. 56, 33 N. E. 1111;Com. v. Homer, 153 Mass. 343, 26 N. E. 872. It is, however, necessary before such declarations can be admitted that the presiding judge must be satisfied of the declarant's belief in the certainty of approaching death, and that the statements made are material and relevant to the issue on trial. Com. v. Brewer, 164 Mass. 577, 42 N. E. 92;Com. v. Bishop, 165 Mass. 148, 152, 42 N. E. 560. The preliminary inquiry made in the absence of the jury abundantly showed and the judge by admitting the evidence found that the decedent realized that all hope of recovery was gone, and the fact that she held up her right hand and repeated to one of the attending physicians ‘I say this realizing I am about to die, and this is true so help me God,’ did not render her declaration that he performed the operation merely a statement under oath and hence as the defendant contends inadmissible as hearsay. Rex v. Woodcock, 2 Leach's Crown Law, 563. It is true that she made contradictory statements as to the person responsible for her pregnancy but the change of names in the accusation went to the weight and not to the competency of the evidence when submitted to the jury. Com. v. Cooper, 5 Allen, 495, 81 Am. Dec. 762;Com. v. Roberts, 108 Mass. 296;Com. v. Brewer, 164 Mass. 577, 42 N. E. 92. And her declarations having been properly admitted were left for their consideration under full and suitable instructions. Com. v. Bishop, 165 Mass. 148, 42 N. E. 560;Com. v. Robinson, 146 Mass. 571, 580, 581, 16 N. E. 452. This evidence when coupled with the testimony of the doctors describing her symptoms and giving their opinion as to the cause of death and the uncontradicted evidence showing the location of the defendant's office and his name as a practicing physician which corresponded with the description given by the declarant was sufficient unless controlled to warrant the jury in finding that the decedent died as the result of an abortion unlawfully performed by the defendant who afterwards treated her at the house of Mrs. Hansen. Com. v. Lucas, 158 Mass. 81, 83, 32 N. E. 1033.

[4][6][8][9] The prosecuting officer having called her as a witness, exceptions to her testimony are presented and urged in various forms. The witness was the nurse to whom the decedent declared she had been sent immediately after the operation, and in whose care she remained until removed to the hospital where she died. If believed by the jury she received and cared for the decedent in response to a call over the telephone ‘from Dr. Turner’ who said, “I am Dr. Turner that you spoke to a few months ago' and then he asked me if I had any rooms vacant and I said ‘Yes.’ He said, ‘I am sending over a girl roomer. Would you take care of the girl until I see you?” and that while at her house he attended the decedent as a patient. It is plain that the defendant's exceptions to the admission of this evidence from which the jury rejecting other parts of her testimony could say that the defendant was the guilty operator, are not well taken. The issue of the defendant's identity was material, and when confronted with the defendant, the witness having denied that he was the doctor who telephoned or visited the house, the commonwealth, after calling her attention thereto, was properly permitted to show prior contradictory or inconsistent statements made to police officers in which she stated that the defendant was the person with whom she dealt and that at the first trial she testified that the doctor who called at the house ‘looked like the defendant.’ The evidence of a police officer also tending to identify her as the woman seen talking in the street with the defendant after the operation had been performed was admissible. Whatever uncertainty in identification he may have shown on cross-examination, or however limited his opportunities for...

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    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 24, 1984
    ...362 Mass. 382, 386, 286 N.E.2d 333 (1972). Salonen v. Paanenen, 320 Mass. 568, 575, 71 N.E.2d 227 (1947). Commonwealth v. Turner, 224 Mass. 229, 237, 112 N.E. 864 (1916). See P.J. Liacos, Massachusetts Evidence at 141; 3A J. Wigmore, Evidence § 1018(b) at 996-998 (Chadbourn rev. 1970). By c......
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    ...948;Commonwealth v. Rivet, 205 Mass. 464, 91 N. E. 877;Commonwealth v. Borasky, 214 Mass. 313, 321, 101 N. E. 377;Commonwealth v. Turner, 224 Mass. 229, 238, 112 N. E. 864;Commonwealth v. Russ, 232 Mass. 58, 82, 122 N. E. 176;Commonwealth v. Teregno, 234 Mass. 56, 124 N. E. 889;Commonwealth......
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    ...Commonwealth v. Johnson, 188 Mass. 382, 387, 74 N.E. 939; Commonwealth v. Borasky, 214 Mass. 313, 321, 101 N.E. 377; Commonwealth v. Turner, 224 Mass. 229, 238, 112 N.E. 864; Commonwealth v. Ginsberg, 286 Mass. 326, 328, 190 N.E. 529; Commonwealth v. Polian, 288 Mass. 494, 500, 193 N.E. 68,......
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