Commonwealth v. Wagner

Citation231 Mass. 265,121 N.E. 25
PartiesCOMMONWEALTH v. WAGNER.
Decision Date27 November 1918
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Hampden County; William Hamilton, Judge.

David Wagner was convicted of unlawfully attempting by the use of a certain instrument, to procure a miscarriage, in consequence of which the woman died, and he excepts. Exceptions overruled.

Jos. B. Ely, Dist. Atty., of Springfield, for the Commonwealth.

Chas. L. Young and Wm. G. McKechnie, both of Springfield, for defendant.

BRALEY, J.

[2][3] The defendant who has been indicted, tried and convicted under Rev. Laws, c. 212, § 15, of the crime of unlawfully attempting by the use of a certain instrument to procure a miscarriage of one Nellie Ostrom, in consequence of which she died, contends, that his exceptions to the admission of evidence, and to the refusal to direct a verdict in his favor, show reversible error entitling him to a new trial. The commonwealth having offered in evidence a paper subscribed and sworn to by her before a justice of the peace, purporting to be her declarations concerning the material acts and conduct of the defendant, the question is whether the preliminary findings of the judge, that ‘the deceased believed that her end was near, and that she had no chance of recovery, and that she had no hope of recovery,’ were within his province and were warranted. The undisputed evidence of the attending physician and of the magistrate, which was properly admitted, furnishes ample proof that she fully realized that recovery was impossible and that she must die. It was under these conditions that the questions were asked and answered. The paper although not a deposition having been primary evidence of her declarations, the judge in unexceptionable language rightly permitted it to be read to the jury, to whom in accordance with our rules of criminal procedure the question of its admissibility was ultimately left under appropriate instructions to which no exceptions were taken. Com. v. Haney, 127 Mass. 455;Com. v. Turner, 224 Mass. 229, 235, 112 N. E. 864. The defendant however further urges, that the statements therein descriptive of her purpose in seeking medical advice or assistance, and of conversations with him, should have been excluded. But if death had not ensued the declarant as a witness could have testified concerning her pregnancy, and relations with the defendant as her medical adviser, and such testimony is none the less...

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