Commonwealth v. Wagner

231 Mass. 265 | Mass. | 1918

Bbaley, J.

The defendant, who has been indicted, tried and convicted under R. L. c. 212, § 15, of the crime of unlawfully attempting by the use of a certain instrument to procure a miscarriage of one Nellie Ostrom, in consequence of which she died, contends, that his exceptions to the admission of evidence, and to the refusal to direct a verdict in his favor, show reversible error entitling him to a new trial.

The Commonwealth having offered in evidence a paper subscribed and sworn to by her before a justice of the peace, purporting to be her declarations concerning the material acts and conduct of the defendant, the question is whether the preliminary findings of the judge, that “the deceased believed that her end was near and that she had no chance of recovery and that she had no hope of recovery” were within his province and were warranted. The undisputed evidence of the attending physician and of the magistrate, which was properly admitted, furnishes ample proof that she fully realized that recovery was impossible and that she must die. It was under these conditions that the questions were asked and answered. The paper, although not a deposition, having been primary evidence of her declarations, the judge in unexceptionable language rightly permitted it to be read to the jury, to whom in accordance with our rules of criminal procedure the question of its admissibility was ultimately left under appropriate instructions to which no exceptions were taken. Commonwealth v. Haney, 127 Mass. 455. Commonwealth v. Turner, 224 Mass. 229, 235. The defendant however further urges, that the state-ments therein descriptive of her purpose in seeking medical advic'e or assistance, and of conversations with him, should have been excluded. But, if death had not ensued, the declarant as a witness could have testified concerning her pregnancy and her relations with the defendant as her medical adviser, and such testimony is none the less competent, because it is presented in the form pf declarations made under a sense of impending death occurring within twenty-four hours thereafter. Commonwealth v. Wood, 11 Gray, 85. State v. Glass, 5 Ore. 73. State v. Howard, 32 Vt. 380. Mattox v. United States, 146 U. S. 140.

The evidence of the medical examiner, whose professional qualifications were unquestioned and who, performed the autopsy, that the cause of death was “septic abortion” as well as his answer in the negative to the question whether the subsequent operation of curetting performed at the hospital was sufficient to have caused the infection or septic condition, was plainly competent/ The record shows that by the words “septic abortion” he did not mean that a criminal abortion had been performed, but meant only that a miscarriage had been caused producing symptoms which were not attributable to the curetting. Commonwealth v. Thompson, 159 Mass. 56, 58.

The question of the defendant’s guilt or innocence was for the jury, and the exceptions must be overruled.

So ordered.