53 N.H. 484 | N.H. | 1873
This indictment is founded upon section 13 of chapter 264, General Statutes, and provides that any person who shall cause the death of any pregnant woman, in the manner therein described, shall be taken and deemed to be guilty of murder in the second degree, and be punished accordingly. Section 5, of the same
The calling the foreman of the grand jury to testify what the evidence was before that jury, we think was also justified by the authorities. In 1 Cli. Cr. Law, sec. 317, it is said that the true object of the secrecy required of the grand jury is, to prevent the evidence produced before the grand jury from being counteracted by subornation of perjury on the part of the defendant; and that, when a witness upon the trial swears differently from what he did before the grand jury, they (the grand jurors) may inform the judge, who may cause the witness to be prosecuted for perjury on the testimony of the grand inquest. See also 4 13ach. Com. 126, and note by Christian; 2 Russell on Crimes 912. In Tompson v. Mussey, 3 Greenl. 305, it was proved what the testimony was before the grand jury, but it is not clear whether by the prosecuting officer alone -or by the aid of the jurors. But in Low's case, 4 Greenl. 439, the testimony of the grand jurors was received, not so much to show what the testimony was, as to show that twelve of the jurors did not concur in finding the bill of indictment. And it was held, contrary to the general holding on that subject, that a case for the defendant might be made out in that way, — which was going much further than the present case. In 1 Wharton’s Am. Cr. Law (6th ed.), see. 508, this matter is discussed, and the authorities cited and commented on, from which I judge the weight of authority now to be, that a grand juror may bo compelled to testify — when necessary to promote the cause of justice — what the witnesses before the grand jury testified to, either to contradict such witnesses, or otherwise.
In Commonwealth v. Mead, 12 Gray 167, the. question arose in its present form, whether the testimony of grand jurors is admissible to prove that one of the witnesses in behalf of the prosecution testified differently before them from the testimony before the trial jury. In the opinion, Bigelow, J., says, — As to the competency of such evidence, the authorities are not uniform : the weight of it is in favor of its
As to the arguments upon one side and the other, in regard to the admissibility of the dying declarations of said Elvira Woodward, it does not seem to us that the objection is well founded. When counsel argue upon facts not in the case, they should be stopped when the court’s attention is called to it; but they usually argue the evidence which is in, or which is offered, and express their views of it and of its competency freely and fully. The evidence was offered and its materiality was discussed, and counsel expressed their views of it fully. The evidence was finally ruled in, and the jury had the evidence, with the views of counsel thereon, in the beginning, instead of hearing the evidence first, and the arguments as to its.weight afterwards. We can see no good grounds for this objection.
The next three exceptions stand upon the same ground, and may all be considered together. The evidence offered was the merest hearsay in the world. They were not dying declarations, nor were they connected with any fact that alone had any connection with the cause on trial. The case of Patten v. Ferguson & a., 18 N. H. 528, would seem to settle this question. The fact was of no importance, standing alone,, and the declaration, standing alone, was incompetent: when they are united, the unimportant fact is used as a vehicle to introduce the incompetent declaration. Downs v. Lyman, 3 N. H. 486; Morrill v. Foster, 32 N. H. 358. The calling at Dr. McCoombs’s on February 8 with Mrs. Merrill, and what Elvira said on leaving the Manchester House on that occasion, and that she ever told Mrs. Merrill where she was going and for what purpose, or the fact that Ferren lent her a shawl on one occasion, and that she told him where she was going, and when she returned it that she told where she had been and what she had done, — are all facts of no importance here, when standing alone, and the declarations, standing alone, were clearly incompetent; and the theory that such a declaration can be valid and made competent by connecting it with a fact utterly immaterial to the cause, does not need authorities to refute it.
As to Dr. Ferguson’s cross-examination, we see no reason for any objection to it. He had stated, as well he might, on direct examination, his knowledge of a particular subject, not from any experience or actual observation, but from what he had derived merely from reading and studying medical authorities. Then he was cross-examined as to that general reading, not by putting in the books, but by inquiries whether, in his general reading, lie had not found particular theories laid down conflicting with the theory he had advanced as the result of his reading. Collier v. Simpson, 5 Car. & Payne 73, goes further than the present
It is settled, in Taylor v. Railway, 48 N. H. 804, that a physician may" give his opinion as an expert upon a subject concerning which he has had no practical experience, and where his knowledge is derived from study alone. This case, we think, fully sanctions the direct examination of this witness upon a subject where his knowledge was derived from books alone ; and the cross-examination was simply the testing of the correctness of his opinion by the same standard upon which the opinion was founded, — the authority of the medical books which he had read. We think this ruling was right.
As to the exception that there was no evidence submitted to the jury upon which they could find the fact that any instrument was used, we can have no doubt. Deceased was shown to have been, on March 20, 1871, pregnant with a quick child, being some four or five months along. It was admitted that she came to the defendant’s house the first day of April after, where she remained, and that she was delivered of a dead foetus April 3, after which she had puerperal fever, of which she died April 27.
The testimony of Dr. Buck tended to show that she had been pregnant while she was alive, and that she had been delivered by some artificial means; that she had not taken any kind of poisons to produce this result, for the reason that, if taken, they would leave their marks in the stomach and other parts of the body, and that he found no such marks hero. He found no marks of instruments, but he described the manner of using them in procuring abortions, and testified that, if skilfully used, he should not expect they would leave any marks. His opinion was, in brief, then, that an abortion had been produced by artificial means, and he was satisfied it was not by poisons or drugs taken into the stomach, but that it was done by the use of instruments which would be expected to leave no marks; which was the case in this instance. We think the evidence was competent, so that the jury may have properly found that the respondent produced an abortion with “a certain instrument to the jurors unknown.”
The next exception, that to the form of the indictment, has no foundation, as will be seen by an examination of the indictment, and comparing it with secs. 11, 12, and 13, cli. 264, Gen. Stats. This indictment is founded upon secs. 11 and 13 of this statute, and not upon secs. 12 and 13; and therefore no such allegations in the indictment were called for as the defendant suggests.
We are also satisfied that there is no good reason to set aside the
Exceptions overruled.