Thе defendant was found guilty by a jury on an indictment which charged that on February 10, 1960, at Medford, he, with intent to procure the miscarriage of Margaret L. Calder, unlawfully used a certain instrument upon her body. The indictment was in the language of the statute, G. L. c. 272, § 19, and in the form provided by C. L. c. 277, § 79. Sentence was imposed and the defendant appealed in аccordance with the provisions of G. L. c. 278, §§ 33A-33G-. Of his five assignments of error he has argued those numbered 1, 2, and 5. Assignments 1 and 2 аre to the exclusion of questions by the defendant to witnesses of the Commonwealth in cross-examination, and assignment 5 is to the denial of the defendant’s motion for a directed verdict.
There was evidence that Mrs. Calder was a divorced woman, with two children, living in Medford. The defendant was a doctor with an office in Lowell. Mrs. Calder’s family рhysician was a Dr. Mills whom she had consulted regularly from November 16, 1958, to and including February 9,1960. She had known the defendant socially for four *677 or five years. On or about February 3,1960, she called him on the telephone and told him that she needеd him “for some special services.” She called him thereafter several times and made an appоintment for him to come to her home on February 10. He arrived at about noon, bringing with him two bags containing instruments and a stеrilizer. He asked her how she was feeling and she said “fine. ’’ He took her blood pressure, examined her heart, аnd went with her to a bedroom, where he inserted in her “vaginal area” “some metal rods, or things,” a tube and some gauze bandage. He had told her that his fee would be $300 and she paid him this sum in cash.
The defendant concedes for purposes of his appeal that there “was ample evidence which would warrant the jury in finding that the defendаnt used an instrument with intent to procure the miscarriage of Mrs. Calder” but contends that the evidence was insufficient tо warrant a finding that the defendant used the instrument unlawfully.
We have held that a physician is justified in effecting an abortion whеre he has exercised his skill and judgment in the honest belief that his acts were necessary to save the woman from great peril to her life or health
(Commonwealth
v.
Brown,
The Commonwealth had the burden of proving beyond a reasonable doubt the material averments оf the indictment, one of which was that the defendant used the instrument
*678
“unlawfully.”
Commonwealth
v.
Wood,
Where the defendant is not a physician, the mere proof of his аct ordinarily would be sufficient to establish its unlawfulness (see
Commonwealth
v.
Polian,
In the present case it could be found from the circumstances attending the abortion that the defendant was not influenced by the condition of the woman’s health; that he gave no thought to the judgment of his fellow practitioners; and that he acted from the “sordid motive” of earning a large fee.
Commonwealth
v.
Brown,
The defendant’s first assignment of error was to the exclusion of a question on cross-exаmination to Mrs. Calder who had been called as a witness by the Commonwealth. *679 She was asked if she had been under treatment by Dr. Mills for some time and answered “Yes . . . for over a year.” She was then asked, “And you have been under treаtment with him for what condition?” On objection the question was excluded, subject to the defendant’s exception. Counsel conferred with the judge to whom it was stated that the purpose of the question was to show that Mrs. Calder was а chronic alcoholic. There was no error in its exclusion. It did not appear that her habits as to intoxiсating liquor would result in any danger in connection with her pregnancy.
The second assignment was to the exclusion оf a question in cross-examination to Dr. Mills who had testified for the Commonwealth. After an inquiry to the doctor as to thе medication which he had given to Mrs. Calder, he was asked, “In your opinion, doctor, was she in sufficiently good physiсal condition so that a pregnancy would be of any danger to her as of February 9?” Assuming, as we think the examiner must have intended, that the question be interpreted to mean “Was she in such physical condition that a pregnanсy would be of any danger to her on February 9?” an affirmative answer would not have sufficed to warrant a finding of justification. There was no evidence. that the defendant believed in the existence of such danger, and no intimation to the judge that evidence of belief would be presented. There was no error in excluding the question.
Judgment affirmed.