264 Mass. 314 | Mass. | 1928
The defendant was indicted, tried and convicted under G. L. c. 272, § 19, for an unlawful attempt by the use of a certain instrument upon the body of Mary Sylvia to procure her miscarriage, in consequence of which she died. There were no requests for rulings or exceptions to the instructions by the defendant and the assignment of errors relates to the admission and exclusion of evidence. The uncontradicted evidence for the Commonwealth showed that death was due to septic poisoning caused by inflammation and decomposition in the uterus of part of the afterbirth. While an inmate of a local hospital, to which she went on the advice of Dr. Robert, who had been called to her home, she made statements in the presence of the defendant concerning the cause of her condition, which were not admissible as dying declarations under G. L. c. 233, § 64, but which were made in the presence of the defendant in response to questions asked by a policeman, one of the officers charged with the investigation of the case, and taken by a stenographer.
■ It is manifest on this evidence that at the time the defendant was at the hospital' he had not been taken into custody; whether the conduct of the defendant after he heard Mrs. Sylvia’s charges amounted to an admission of their truth was a question for the jury. The first assignment of error that the conversation between Mrs. Sylvia and the officers was inadmissible cannot be sustained. Warner v. Fuller, 245 Mass. 520, 528.
The second assignment of error is the refusal of the judge
If, however, the defendant deemed the entire evidence equivocal, the question was for the jury under appropriate instructions. It could not be raised by a motion to strike out. Commonwealth v. Gangi, 243 Mass. 341, 344.
The defendant offered to show that when Mrs. Sylvia came to his office she told him of her condition and symptoms connected with it. But the trial judge excluded the statements. The exclusion was right and the third assignment of error fails, for reasons given in Commonwealth v. Sinclair, 195 Mass. 100, 108. It is unnecessary to consider G. L. c. 233, § 65, since the evidence was incompetent on its merits.
We discover no reversible error for the reasons stated and the entry must be
Judgment affirmed.