315 Mass. 551 | Mass. | 1944
The defendant Hoff, a physician, was indicted for having on February 13, 1942, unlawfully used a certain instrument upon the body of Eita Goddu, with intent to procure her miscarriage, in consequence whereof
1. The defendant Hoff assigns as error the denial of the following request for a ruling: “If any statement was made in the presence of the defendant charging, or tending to charge, the commission of the crime set forth in the indictment and such statement was obviously not made upon the personal knowledge of the person making such statement, such a statement would be hearsay, and the defendant was under no obligation to deny the truth thereof and no inference against the defendant may be drawn from his failure to deny.” This request could not have bee'n granted. There is no requirement in the law of evidence that statements made in the presence of a person not under arrest, to be admissible as evidence of admissions through failure to deny or by reason of an equivocal or evasive response, must have been made on the personal knowledge of the person uttering them. The grounds of the admissibility of such evidence have often been stated and include no such exception. Commonwealth v. Kenney, 12 Met. 235, 237. Commonwealth v. Brown, 121 Mass. 69, 80. Warner v. Fuller, 245 Mass. 520, 528. Commonwealth v. Hamel, 264 Mass. 564, 569. Commonwealth v. Hebert, 264 Mass. 571, 578. See Commonwealth v. Helfman, 258 Mass. 410, 414-415.
2. The defendant Hoff’s remaining assignments of error not expressly waived concern testimony of Rita Goddu’s mother as to a statement by her daughter admitted as a dying declaration under G. L. (Ter. Ed.) c. 233, § 64, and the denial of requests for rulings respecting the same. It is contended that the statement did not constitute a dying declaration, because a finding was not warranted that at the time it was made Rita Goddu had abandoned all hope of recovery. The testimony was to the effect that on March 3, while the mother was at the hospital, the daughter “said she was going to die anyway and she was awful sick. . . .
3. The defendant Roberts assigns as error the failure to give three requests for rulings in substance to the effect that the evidence was insufficient to warrant a finding of guilty and that as a matter of law the prosecution had failed to prove that the defendant was guilty as an accessory before the fact. These requests were rightly refused. In a statement to the police the defendant Roberts admitted that he had immoral relations with Rita Goddu beginning in 1938; that in 1939 she became pregnant, and he went to the office of the defendant Hoff, inquired as to the cost of performing an abortion, and was told $100, a figure later reduced to $50; that he brought her to the defendant Hoff’s office and in half an hour she returned and told him that Dr. Hoff had taken care of her; that in November, 1941, he got Miss Goddu into trouble again
4. The defendant Roberts also assigns as error the refusal of three other requests for rulings. One request was based on the premise that if this defendant should be found to have driven the deceased to Holyoke on February 12, such evidence would be insufficient to warrant a finding of guilty.
In each case let the entry be
Judgment affirmed.