Commonwealth v. Brown, 121 Mass. 69

Commonwealth v. Brown

121 Mass. 69 | Mass. | 1876

Gray, C. J.

The court has no doubt that the provisions of the Gen.. Sts. c. 132, as to the drawing and selecting of jurors, are within the constitutional authority of the Legislature. Both before and since the adoption of the Constitution of the Commonwealth, the Legislature of Massachusetts has defined the persons who should constitute the class from which jurors should be taken, and has authorized the list to be made up of such persons as the municipal authorities should select from that class. Anc. Chart. 144, 221, 282, 332. Sts. 1784, cc. 4, 7 ; 1793, c. 63; 1802, c. 92 ; 1807, c. 140; 1812, c. 141. Rev. Sts. c. 95. 6 Dane Ab. 227-230. Commonwealth v. Smith, 9 Mass. 107. Page v. Danvers, 7 Met. 326. And see U. S. Sts. 1789, c. 20, § 29; 1800, c. 61; U. S. Rev. Sts. § 800; United States v. Dow, Taney, 34, 36 ; Clinton v. Englebrecht, 13 Wall. 434, 444.

The grand jury by which this indictment was found was empanelled at January term 1875 of the Superior Court, to serve for six months; the venire issued by the clerk of the court was in due form; and the persons who constituted this grand jury were qualified by law to serve as grand jurors. Gen. Sts. a. 171, §§ 1-3. The special objections made by the defendant to the constitution of this grand jury are based upon errors in the mode of drawing, summoning and returning them.

But by the St. of 1875, c. 5, which was passed and took effect on February 5,1875, it was enacted by the Legislature that the grand jurors empanelled at January term 1875 in Suffolk should “ for all purposes be deemed and held to be the grand jury of said county, duly and legally drawn, summoned, returned and empanelled ” for each term within the six months, “ notwithstanding any irregularity in any writ of venire facias, or in the drawing, summoning, returning and empanelling of said grand jurors.”

This indictment was presented to the court after the passage of this act. The question before us therefore is whether this statute was constitutional so far as concerned future indictments. The Legislature might have provided that the grand jurors *79should be drawn, summoned and returned by the mayor and aldermen, the city clerk and the constable, in the very way which was in fact followed in this case; and it was within its constitutional authority to enact that citizens of the class qualified by the general laws to serve as grand jurors, and who were in attendance upon the court as such, in one or all of the counties of the Commonwealth, although irregularly drawn, summoned and returned, should constitute the grand jury of the county for the residue of the usual period of service. As applied to indictments found after the passage of the statute, the statute is not ex post facto, and is clearly within the constitutional power of the Legislature. Commonwealth v. Phillips, 11 Pick. 28. Locke v. New Orleans, 4 Wall. 172. Gut v. State, 9 Wall. 35.

This case does not require us to consider whether this statute could be held to be within the class of laws correcting mistakes and curing defects and irregularities in past proceedings of courts and other public bodies within their general jurisdiction and authority, and thus to make valid indictments found before its passage. See Prov. St. 1760 (33 Geo. II.) § 6, Anc. Chart. 627; Foster v. Essex Bank, 16 Mass. 245,273 ; Simmons v. Hanover, 23 Pick. 188, 194; Denny v. Mattoon, 2 Allen, 361, 377, 384; State v. Doherty, 60 Maine, 504; Thomson v. Lee County, 3 Wall. 327, 331.

The result is, that the objections to the grand jury by which this indictment was found cannot be sustained, and that, upon the other points stated in the exceptions, the case must stand for Further argument.

The case was submitted on briefs, on the remaining questions, to the whole court, in June, 1876.

G. W. Searle, for the defendant.

C. R. Train, Attorney General, & W. C. Loring, Assistant Attorney General, for the Commonwealth.

Morton, J. It is settled by the former decision in this case that the St. of 1875, c. 5, cured any defects which may have existed in the drawing, summoning, returning and empanelling of the grand jury who found the indictment against the defendant, and that, therefore, the facts alleged in the defendant’s special *80plea furnished no cause for challenging the array of the grand jury. The Superior Court might and should have overruled the special plea as matter of law. Commonwealth v. Lannan, 13 Allen, 563. There were no material facts to be submitted to a jury or other body of triers.

But the error of the presiding justice, in submitting the special plea to a jury, was immaterial. It has been repeatedly held that, where a question of law is erroneously submitted to a jury, if the jury decide it rightly neither party has any ground of exception, because he is not aggrieved. Ricker v. Cutter, 8 Gray, 248. Krebs v. Oliver, 12 Gray, 239. Smith v. Faulkner, 12 Gray, 251. For the same reason, if there were any erroneous rulings in the trial of the defendant’s special plea before the petit jury, he has no' ground of complaint, because he was not in any manner prejudiced thereby. As the whole proceedings in that trial were immaterial, and the final ruling of the court overruling the special plea was correct as matter of law, it is not necessary to consider whether the several rulings of the Superior Court during such trial were correct, because the defendant was not aggrieved, or his rights affected by them.

At the term next after that in which his special plea was overruled, the defendant was tried upon the merits before another jury to which no objection was made, and .during the trial he alleged numerous exceptions which remain to be considered.

1. The admission of the statements of Emma L. Smith and Frances A. Chase, made in the presence and hearing of the defendant, was proper. The rule is that a statement made in the presence of a defendant, to which no reply is made, is not admissible against him, unless it appears that he was at liberty to make a reply, and that the statement was made by such person and under such circumstances as naturally to call for a reply unless he intends to admit it. But if he makes a reply, wholly or partially admitting the truth of the facts stated, both the statement and the reply are competent evidence. Commonwealth v« Kenney, 12 Met. 235. Commonwealth v. Galavan, 9 Allen, 271. In this case, when Emma L. Smith and Frances A. Chase stated that the defendant had performed an operation on them, he did not remain silent, but asked them in reply if they had been previously operated upon by another person. The jury might infer *81from this an admission by him of the truth of their statements. The facts that the defendant was under arrest, and was taken by the officer to their presence, do not destroy the competency of the evidence. It follows that the court properly refused the seventh and thirtieth prayers for instructions.

2. The “ speculum chair,” and other surgical instruments adapted to use in producing abortion, found in the possession of the defendant, were properly put in evidence, for the same reasons that, upon a trial for burglary, implements of burglary found in the defendant’s possession are admissible. They tend to show that the defendant had the means and opportunity to commit the offence charged. The fair inference to be drawn from the evidence was for the jury, and it was submitted to them with proper instructions. It was clearly competent for medical experts to testify that the instruments found were adapted to produce abortion, that being a matter within their special experience, and beyond the range of general knowledge.

3. The refusal of the court to allow the defendant to read to the jury books of medical authorities was in accordance with the well settled practice in this Commonwealth. Commonwealth v. Sturtivant, 117 Mass. 122, and cases cited.

4. The rulings of the court refusing to give various instructions requested by the defendant were correct. There was evidence tending to prove all the allegations of the first and fourth counts, upon which alone the defendant was convicted.

The eighth, ninth, thirteenth, fourteenth, fifteenth, eighteenth, twenty-second, twenty-third, twenty-sixth, twenty-seventh and twenty-eighth prayers for instructions are requests to the court to instruct the jury upon matters of fact, and were properly refused.

The instructions requested in the twentieth and twenty-fifth prayers were given in substance by the presiding justice, who was not bound to adopt the precise words of the defendant. Brown v. Pease, 104 Mass. 291, 308. Nor was he required to instruct the jury in the words of the twenty-ninth request, that the testimony of the two women who, at their own request, were operated upon by the defendant, was to be taken with “ great circumspection and caution and discredit.” He properly left the fact of their complicity in an unlawful act to be considered *82by the jury “ as affecting their credibility as witnesses and the force and weight of their testimony.” It was for the jury, and not for the court, to say how far, under all the circumstances, they were to be believed.

The instructions given contain no error of law, and were appropriate to the facts of the case.

5. The motion to quash the indictment and the motion in arrest of judgment were properly overruled. The several counts allege with certainty all the facts which constitute the offence described in the statute.

The objection that the indictment is bad because more than one offence is joined in it cannot be sustained. It is settled in this Commonwealth that several offences may be charged in the same indictment when they are of the same general nature, and when the mode of trial and the nature of the punishment are the same. Carlton v. Commonwealth, 5 Met. 532. Booth v. Commonwealth, 5 Met. 535. Josslyn v. Commonwealth, 6 Met. 236. Commonwealth v. Costello, 120 Mass. 358.

Exceptions overruled.