310 Mass. 293 | Mass. | 1941
The defendants Cheng, a physician, and McCue, a florist, were indicted, tried and convicted of conspiracy, commencing on August 25, 1939, and terminating on the date of the indictment, to use unlawfully certain instruments upon one Catherine Dulong for the purpose of procuring.an abortion. The case is here on exceptions taken to rulings upon evidence and to the denial of certain requests for instructions to the jury.
The defendants excepted to the testimony of one De Lorenzo that she and Dulong met McCue in June or July, 1939, and that she heard Dulong tell McCue that she was in a family way. This witness also testified that McCue mentioned certain drugs and said that he would in a few days give Dulong money in order that Dulong could purchase some medicine; that the three of them again met in a few days, when McCue, after inquiring of Dulong concerning her condition, gave her some money; that about a week later McCue suggested that he would take Dulong to a doctor in Boston; that Dulong said she was scared and McCue replied that there was no need to fear as other girls had done the same thing. De Lorenzo testified that she later accompanied Dulong and McCue on two trips to a Boston physician, that she heard McCue tell Dulong that she would probably have to stay a week on her next visit, and that he also said that the doctor’s fee was too high and that he would take her to another doctor. Subject to exception, De Lorenzo was permitted to testify that McCue said that he would take Dulong to Dr. Cheng where he had taken girls before and they were all right. Late in August the witness accompanied Dulong and McCue to the house of Dr. Cheng. On September 1, 1939, the witness met McCue on the street and introduced Mrs. Dulong, the mother of Catherine, to him. McCue told Mrs. Dulong that her daughter was in trouble and that he wanted to help her, and théy went to Dr. Cheng’s. The witness met McCue on September 4, 1939, and he told her to have
The exception to permitting the mother to testify as to the number and ages of her children does not appear from anything contained in the record to have prejudiced the rights of either defendant. Substantially similar evidence has been frequently admitted by trial courts. It has been said that its admission is discretionary with the trial judge and that although it might have been better in some instances to exclude such testimony, its admission does not constitute reversible error. Luiz v. Falvey, 228 Mass. 253.
Mrs. Dulong, while at Cheng’s home on September 1, 1939, was told by him that he would insert a bag into the womb of Catherine, pump air into the bag, tie up the end of the tube coming from the bag and remove the bag after she had commenced to get cramps, and that whatever was in there would drop down to where the bag had been. She consented to having her daughter treated by Cheng and sent her the next day to see him. A week later she found her daughter crying, and saw a rubber tube coming from her body. The end of it was tied up at her waist line. McCue told her on September 18, 1939, that two doctors were waiting at Dr. Cheng’s and that they had everything ready to perform the operation over again, and her daughter got into an automobile with McCue and they drove off. When she saw McCue on the next morning he smelt strongly of ether and he told her that he gave Catherine ether and held her while the doctor inserted the tube. The defendants excepted to the testimony that on September 19, 1939, when she put her arm around her daughter’s waist she felt a lump which she knew was a tube. There was no error in the admission of this testimony. From her previous observation of the tube which she had seen attached to her daughter’s body, she could testify that the object that she felt was the tube. Commonwealth v. Sturtivant, 117 Mass. 122. Commonwealth v. Best, 180 Mass. 492. Koch v. Lynch, 247 Mass. 459. Commonwealth v. Simpson, 300 Mass. 45. Crafts v. McCobb, 303 Mass. 172. Way v. State, 155 Ala. 52.
Mrs. Dulong left her daughter at Cheng’s on the evening of September 19, 1939, and that was' the last time she ever saw her. She has not heard from her daughter since September 21, 1939, when her daughter called her on the telephone. She went to Cheng’s home on September 25, 1939, and asked him where her daughter was. Both defendants were there. Mrs. Cheng told her that her daughter had left on the preceding Wednesday and that she had heard her telephoning to some one to come and get her as she
A medical expert, whose qualifications were unquestioned by the defendants, was allowed to testify, in answer to a hypothetical question, that the insertion of a rubber bag into the womb of a woman who was pregnant for two or three months, inflation of the bag by pumping air into it through a tube which was attached to it, and leaving it in the womb for a period of time, would have the effect of inducing labor and terminating the pregnancy; that there is a medical name for such an instrument; that such an instrument is commonly known to the medical profession as a method employed for inducing labor in a woman pregnant between two and one half and four and one half months; and that the woman after the instrument was inserted could go about her daily activities.
The exception to the hypothetical question is untenable.
A medical expert who is familiar with the use of instruments may state the name by which they are known in the medical profession; the purpose and ‘the method of their use; and the effect of their use upon the person to whom they are applied. Commonwealth v. Brown, 121 Mass. 69, 74. Commonwealth v. Sinclair, 195 Mass. 100. Commonwealth v. Wagner, 231 Mass. 265. Commonwealth v. Polian, 288 Mass. 494. Commonwealth v. Bartolini, 299 Mass. 503. Commonwealth v. Dawn, 302 Mass. 255. See Commonwealth v. Johnson, 199 Mass. 55; Commonwealth v. Albert, 222 Mass. 196; Commonwealth v. Anderson, 245 Mass. 177.
Various witnesses, including the mother of Catherine Dulong, who would be likely to know her whereabouts if she was in the city where she had resided, were properly permitted to testify that they had not seen or heard from her since late in September, 1939. Such evidence would rebut any argument that might be based upon the failure to call her as a witness. Commonwealth v. Goldberg, 212 Mass. 88. Callahan v. Boston Elevated Railway, 215 Mass. 171. Chandler v. Prince, 217 Mass. 451.
There was no error in the refusal to give the first, fifth and sixth requests for instructions in which the defendants asked that the jury should not take into consideration the
As to the first request, it is to be noted that the instructions carefully confined the jury to a consideration of the offence charged. There is nothing in the record to cause any apprehension that the jury would infer from the absence of Catherine Dulong any other wrongdoing upon the part of the defendants. The judge properly instructed the jury upon the limited use which they could make of such statements of Catherine Dulong as they found were made by her and explained that this limitation resulted from her failure to appear as a witness. Consequently, the jury in considering her statements could not ignore her absence and a request that they should do so could not be given. If the defendants wished to have the jury instructed, as they now argue, that her absence should not be considered in reference to any other offence, they should have requested such an instruction. Commonwealth v. Enwright, 259 Mass. 152. Commonwealth v. Capalbo, 308 Mass. 376.
The defendants were charged with a conspiracy to commit a violation of G. L. (Ter. Ed.) c. 272, § 19, and not with the substantive offence denounced by that statute. Commonwealth v. Walker, 108 Mass. 309. Fox v. Commonwealth, 264 Mass. 51. The pregnancy of the woman is not an essential part of either offence, and there was no error in refusing the fifth and sixth requests, that the Commonwealth must prove Dulong was pregnant and that, if there was no evidence that she was, the defendants must be acquitted. Commonwealth v. Taylor, 132 Mass. 261. Commonwealth v. Surles, 165 Mass. 59. Commonwealth v. Nason, 252 Mass. 545.
Exceptions overruled.