Commonwealth v. Noble

165 Mass. 13 | Mass. | 1895

Morton, J.

The only question which has been argued is that which was raised at the conclusion of the testimony by a motion to dismiss the indictment because of a variance between the allegation in the indictment that the defendant “ did use a certain instrument, the name of which instrument is to the jurors aforesaid unknown,” and the proof. The defendant Kelley, called as a witness by the government, described how the abortion was performed, and, in answer to a question put to him on the cross-examination, said that he had testified the same at the trial as he did before the grand jury. He was not asked to state, and did not state specifically, what his testimony before the grand jury was. If he had done so, it is possible that it might have appeared that his conclusion that he had testified the same before the petit jury as he did before the grand jury was not entirely correct. We incline to think, therefore, that the testimony before the grand jury, so far as relied on to establish a variance should have been reproduced as there given, in order that the court itself might judge whether it was the same as that" at the trial. But assuming in the present case that it was the same, and that the grand jury gave credence to it, the contention of the defendant goes almost, if not quite, to the extent of requiring him to maintain, as was said of a similar contention in Commonwealth v. Coy, 157 Mass. 200, 215, “ that every cause of which there is any suggestion in the evidence [before the grand jury] must be specifically alleged in the indictment, or it will not support the indictment if proved at the trial.” Although the grand jury was required to state the means by which the abortion was produced with as much certainty as the nature of the evidence before them would warrant, they well might have been uncertain as to which one of the instrumentalities used caused the abortion, or how to describe them or name them. We do not see how it could have been properly held that there was, as matter of law, a variance, and we think that the motion was rightly overruled. The question of fact as to whether there was one was submitted to the jury under instructions to which no exception was taken. Commonwealth v. Webster, 5 Cush. 295. Commonwealth v. Martin, 125 Mass. 394. Commonwealth v. Coy, 157 Mass. 200. Commonwealth v. Holmes, 157 Mass. 233.

The allegation in the indictment was in a form which has been approved heretofore; Commonwealth v. Jackson, 15 Gray, 187; Commonwealth v. Corkin, 136 Mass. 429; though another form varying slightly also has been used. Commonwealth v. Brown, 121 Mass. 69. Commonwealth v. Follansbee, 155 Mass. 274. Commonwealth v. Thompson, 159 Mass. 56, 58.

The exceptions as to the testimony of Kelley, and the further cross-examination of Atwood by the District Attorney, have not been argued, and we regard them as waived.

Exceptions overruled.