Commonwealth v. Leger

264 Mass. 217 | Mass. | 1928

Braley, J.

The jury could find on the evidence introduced by the Commonwealth that Anna E. Crahan, an unmarried woman twenty-one years of age, believing herself to be pregnant because menstruation had ceased for two preceding periods, left her home October 6, 1927, and went by appointment to the house of one Doris Demopoulos at 45 Vernon Street in the town of Brookline, where she arrived at 10:30 a.m. The defendant, who resided in Boston, a physician by profession but whose license to practise had been suspended, came to the house at about eleven o’clock. Miss Crahan met him in the hall and took him to an upstairs room. The defendant asked “who the man was that was responsible for me,” and Miss Crahan replied that she “would not tell him.” The defendant then directed her to he upon a bed, which she did, lifting her clothes, when the defendant thrust something into her womb which remained for four or five minutes causing her much pain, and then was withdrawn. She was sick and confined to a hospital for about three weeks as the result of a “septic abortion.”

The defendant, who testified in his own behalf, admitted that he was at the house and saw Miss Crahan but denied that he treated her or used any instrument. In this connection we refer to the defendant’s exceptions to the rulings on evidence. It was competent for Miss Crahan to testify that, on the day when she first met the defendant, “she thought she was pregnant,” and that the defendant directed her to he on the bed, and although she said, “I don’t know what he did then,” her further answer that “he put something inside of me,” was admissible. The jury also could find that Doris Demopoulos telephoned the defendant to come to her house on the day in question, and there was ample evidence for the jury that he was the person who answered her call. The jury also could find on all the circumstances that the meeting of the defendant with Miss Crahan was arranged by Mrs. Demopoulos at the request of Miss Crahan. The defendant’s first, second, third and fourth assignments of error accordingly have no merit.

The evidence of Dr. Thompson, a medical expert who was called by the Commonwealth and was found by the court to be qualified, that the clinical examinations of Miss Crahan were consistent with septic abortion, was founded on the evidence, and no error appears in the fifth assignment. Carroll v. Boston Elevated Railway, 200 Mass. 527.

The sixth assignment relating to questions asked by the district attorney in his cross-examination of the defendant is untenable. The defendant testified that when he saw Miss Crahan he had been suspended from the practice of medicine. The questions, whether he told Miss Crahan of the fact, were within the discretion of the judge, which is not shown to have been abused. Commonwealth v. Sacco, 255 Mass. 369.

It is contended under the seventh assignment that the defendant’s motion for a directed verdict of not guilty should have been granted. It was denied rightly. There was evidence that by the defendant’s acts a miscarriage had been purposely caused, which is made a crime by G. L. c. 272, § 19. Commonwealth v. Wagner, 231 Mass. 265. Commonwealth v. Nason, 252 Mass. 545.

The eighth, ninth, tenth, eleventh and twelfth assignments are expressly waived.

The remaining assignments are to the refusal of the judge to give the defendant’s requests concerning the weight to be given to the evidence of Mrs. Demopoulos, who had been indicted as an accessory before the fact, but was called as a witness by the Commonwealth, and gave evidence óf her participation in arranging for the attendance at her house of the defendant, with knowledge of the condition of Miss Crahan, as the jury could find, and the purpose for which he had been procured. Doubtless it could be found that she was an accessory. Commonwealth v. Sinclair, 195 Mass. 100. And her evidence, if believed, tended to show the guilt of the accused. While the case for the Commonwealth did not depend solely on the evidence of Mrs. Demopoulos, the general rule of practice is to caution a jury not to convict where the evidence consists of the uncorrobated testimony of an accomplice. Commonwealth v. Wilson, 152 Mass. 12, 14. But such instructions may be refused in the discretion of the judge, who rightly in the case at bar left the question of her credibility to the jury. Commonwealth v. Bishop, 165 Mass. 148, 150.

Judgment affirmed.