279 Mass. 400 | Mass. | 1932
The defendant was tried by a jury and convicted on four counts of an indictment in each of which he was charged with the commission of the crime of abortion on Winifred E. Muldoon. The trial was conducted under the provisions of G. L. c. 278, as amended by St. 1925, c. 279, and St. 1926, c. 329. Counts 1, 2 and 4 charged that the defendant on December 8, 1930, December 13, 1930, and on June 29, 1931, with intent to procure a miscarriage, did unlawfully use a certain instrument upon the body of one Winifred E. Muldoon. Count 3 charged that the defendant on December 15, 1930, with a like intent, did unlawfully use his hands upon the body of said Winifred E. Muldoon. On November 6, 1931, the defendant filed two motions to quash the several counts; they were denied, subject to the defendant’s exceptions. A motion for a bill of particulars was allowed. The bill of particulars, in part, sets forth the following; “ (1) The instrument referred to in the first, second
There was evidence that visits of this witness to the defendant’s office came to the knowledge of members of her family, and investigation was made “ which resulted in criminal proceedings being instituted against him.
Assignments of error 1 and 2 are based upon the exceptions to the denials of motions to quash the several counts of the indictment. These exceptions are now waived.
The third assignment of error is based upon an exception to the admission in evidence of Exhibit 5, which is a copy of an affidavit executed and sworn to before a.notary public on August 25, 1931, by Winifred E. Muldoon in which she sets forth her visits to the defendant’s office, and the acts done by him to relieve her of her pregnancy described in
Commonwealth v. Jeffs, 132 Mass. 5, Commonwealth v. Sinclair, 195 Mass. 100, McKenna v. Fielding, 272 Mass. 341, cited by the defendant, are distinguishable in their facts from the case at bar.
Assignments of error 4, 5 and 8 all relate to a part of the cross-examination of the defendant by the district attorney. The defendant had testified that he did not commit the acts set forth in the indictment, but had treated the woman only for a disease when she called upon him. He also testified that before he was arrested certain members of the family of Winifred E. Muldoon attempted to extort money from him; that while the indictment was pending and before the trial Winifred E. Muldoon came to him and told him that she had been forced by threats to tell the story she had repeated at the trial, and that it was false. He further testified that she had said to him on several occasions, twice in the presence of his counsel, that she had committed perjury in' her previous testimony, and that he was not chargeable with the offence for which he had been indicted. In his cross-examination by the Commonwealth he was asked, in substance, if he made any complaints against her for perjury or reported it to any person except to his counsel. The district attorney withdrew two questions previously asked the defendant and then the following took place: “Q. . . . Did you make any complaints anywhere against her for perjury?
Assignment of error 6 is based upon exception 4. The defendant was asked by his counsel on redirect examination the following question: “On cross-examination, Doctor, you stated I believe, substantially that you didn’t forbid Miss Muldoonffrom coming to your office but let her come. Was that in consequence of any advice that you received from any one, yes or no?” This question was excluded and the defendant excepted. The defendant made no offer of
The seventh assignment of error is waived.
Assignment of error 9 relates to motions for directed verdicts. Before these motions were filed the defendant in writing moved that all testimony relative to the use of any instrument or means other than described in the plaintiff’s bill of particulars be struck out. This motion was allowed. The motions for directed verdicts were based on the following grounds: (a) There was no evidence that the defendant used a machine which applied electricity directly to the person by placing the same or some part thereof either near or against the body of said Winifred E. Muldoon, with intent to procure her miscarriage; (b) There was no evidence of an intent in the use of such machine to procure a miscarriage and it was impossible thereby to procure a miscarriage; (c) There was no evidence that the defendant unlawfully used his hands upon Winifred E. Muldoon with intent to procure a miscarriage. There was evidence from which the jury could have found that the defendant used an instrument as set forth in the first, second and fourth counts of the indictment upon the body of Winifred E. Muldoon with intent to procure her miscarriage. If the jury believed this testimony a finding was warranted that such an instrument as described in the first, second and fourth counts was used by the defendant upon the body of this woman with intent on his part to procure her miscarriage. There also was evidence from which the jury were warranted in finding that the defendant by the use of his hands removed from the body of Winifred E. Muldoon a completely formed child, and upon such a finding the defendant could have been found guilty under the third count of the indictment. If the jury believed the testimony of the defendant to the effect that his only treatment of this woman was for a disease from which he testified she suffered, they doubtless would have returned a verdict of not guilty. Commonwealth v. Nason, 252 Mass. 545. It is apparent, however, that this testimony was not credited by
The tenth assignment of error is based upon an exception to the denial of the defendant’s motion for a new trial. The grounds of this exception are that the verdict .was against the law upon the evidence submitted; that there was no evidence tending to show the use of any instrument or other means with intent to procure a miscarriage; that the verdict was inconsistent with the verdict returned in another case tried with this one, where the defendant was charged with aiding and assisting the present defendant in the unlawful acts alleged. Other grounds specified are waived. We have considered all the questions raised by this exception; they need not be referred to in detail. It is sufficient to say that no error of law is shown in the denial of the motion. It may be added, however, that the question whether or not a motion for a new trial shall'be granted rests in the sound discretion of the trial judge. Commonwealth v. Dascalakis, 246 Mass. 12, 24, 25. Commonwealth v. Bannon, 254 Mass. 320, 325. There is nothing in the record to show that such discretion was not judicially exercised.
As the record does not disclose any error of law, the entry must be
Exceptions overruled.
Memorandum.
On the eleventh day of June, 1932, the Honorable George Augustus Sanderson died at Boston. He held the office of an Associate Justice of this Court from the ninth day of October, 1924, until the time of his death.