COMMONWEALTH vs. HENRY E. BISHOP & another

HOLMES, J. This is an indictment for doing certain acts upon the body of one Petrene Matson, with intent to procure an abortion, in consequence of which the said Petrene died. The case is here on exceptions, which we will take up in the order in which they are discussed by the defendant.

1. The indictment contained two counts, the second count charging a similar offence upon another woman. The defendant moved for separate trials on the two counts, upon which motion the court suspended action, and, when the evidence of

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the government was in, granted it. The exception on this point is not pressed, it being admitted to be a matter within the discretion of the judge. Commonwealth v. McCluskey, 123 Mass. 401.

2. The court instructed the jury that one Carl F. Monk, the witness who furnished the principal evidence for the government, was an accomplice who had turned state's evidence to avoid the consequences of his part in the affair, and that they were to take the circumstances into consideration in weighing his testimony. At the close of the charge, the defendant asked for fuller instructions as to the uncorroborated testimony of an accomplice, which the court refused. It is settled that the court is not bound to advise the jury that generally it is unsafe to convict on such testimony, although courts sometimes do so. Advice upon the matter is in substance instructing the jury that there is a presumption of fact concerning the veracity of a certain class of witnesses. Although it is permissible, and in some cases may be desirable, to advise in the form above mentioned, the general rule under our practice is to leave such presumptions to the jury, and it is in the discretion of the presiding judge to follow the general rule rather than the exception, if it seems best to him to do so. Commonwealth v. Wilson, 152 Mass. 12, 14. Commonwealth v. Clune, 162 Mass. 206, 214. See Commonwealth v. Briant, 142 Mass. 463, 464; Graham v. Badger, 164 Mass. 42, 47.

In this case the evidence was not wholly uncorroborated. The defendant admitted that he published advertisements which, to say the least, might be understood to hold out that he was ready to do acts of the kind charged, and it appeared by another witness that the defendant wanted to see him in order that the alleged accomplice should employ the defendant's lawyer, and that the defendant showed some anxiety to avoid the accomplice after the latter had been arrested. The defendant's conversations with the witness taken as a whole might have been interpreted also to admit by implication the witness's suggestion to the defendant, that he "thought he did a job for him," that is, for Monk, who was a brother of the witness, and to warrant the inference that the job referred to was the alleged crime.

3. Monk testified that the defendant Bishop gave him a slip

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of paper to take to a certain address along with the said Petrene Matson, and that he took it there and delivered it to the defendant Cole. The counsel for Cole declined to ask his client whether she admitted the receipt of the alleged paper. The court thereupon admitted secondary evidence of its contents, which appeared to be directions in the case of Matson after the operation. If Cole had admitted that she had accepted such a paper without repudiating what it implied, the fact would have been very strong evidence against her. It is plain, therefore, that the judge was warranted in assuming that Cole refused to admit the receipt of the paper, or to produce it, irrespective of any question of the sufficiency of the notice to produce, and if he was of that opinion he was warranted in letting in the evidence as against Bishop.

4. Monk also testified that he went to the Boston Globe office and bought a Sunday Globe, looked at the advertisements, and in consequence of seeing an advertisement went to the defendant's office, where he had testified before that he asked the defendant to procure the abortion. This matter is one of those usual preliminaries which hardly could have been objected to if it had stood alone. If it was connected with the defendant's admission that he advertised in the Globe, and his statement of what he advertised, it fairly warranted the inference that the witness went to the defendant in pursuance of an offer of the latter to the public.

5. One Cole, an alleged accomplice of the defendant other than the above mentioned witness, was tried at the same time. On every occasion when evidence was admitted against Cole which was not admissible against this defendant, the court instructed the jury that it was not to be considered against this defendant. There is nothing to show that this course was not within the discretion of the court, or that its discretion was not exercised wisely. Commonwealth v. Bingham, 158 Mass. 169. There is no need, therefore, to consider particular objections to evidence admitted only against Cole, who, it may be mentioned, was acquitted by direction of the judge.

6. The defendant Bishop testified in his own behalf, and denied that he ever saw Petrene Matson. He stated that he never saw the witness Monk but once, when the latter applied

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to him for treatment for a certain disease. The court excluded the evidence of what Monk applied for. When a witness has testified directly to a fact from the experience of his own senses, the extent to which he shall be allowed to testify to circumstances corroborative of the truth of what he thus has sworn must rest in the discretion of the judge who tries the case. The bearing of the fact excluded, if it had any, was most remote. Delano v. Smith Charities, 138 Mass. 63, 64. Neal v. Boston, 160 Mass. 518, 522.

7. The dying declarations of Petrene Matson were offered by the defendant, under St. 1889, c. 100. The court found that at the time of making them she believed her end was near, and that her chance of recovery was slight, but that she then had some hope of recovery. Upon this finding of fact, the court excluded the evidence. We are asked to reconsider both the finding and the ruling. If the declarations had been admitted we might consider, as in other cases, whether the evidence was sufficient to warrant the findings on which the court proceeded, but we cannot revise the findings of fact. Commonwealth v. Coe, 115 Mass. 481, 505. Costelo v. Crowell, 139 Mass. 588, 590. This being so, when the declarations have been rejected, even if the evidence of an unqualified expectation of death were stronger than it was in this case, we could not say that the judge was not warranted in disbelieving it. It is not argued that the defendant had a right to have the jury revise the finding of the judge. There is no doubt that the proper course is for the judge to pass upon the fact in the first instance. If the evidence is let in, our practice allows the party objecting to the evidence, who generally is the accused, to reargue to the jury the preliminary question, as well as the truth of the declaration. But the whole purpose of the preliminary action of the judge would be lost if in all cases the evidence had to be laid before the jury so as to give them the last word. If the evidence is excluded, that is an end of the matter unless some question of law is reserved. See Commonwealth v. Preece, 140 Mass. 276, 277; Commonwealth v. Robinson, 146 Mass. 571, 580, 581; Commonwealth v. Brewer, 164 Mass. 577. The only question for us is whether the judge was right in excluding the evidence, assuming the facts to be

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as found by him. It is settled that the existence of any expectation of recovery, however slight, makes dying declarations inadmissible. The finding that Matson "then had some hope of recovery" means that she thought she had some slight chance of life. Therefore the ruling was right. Commonwealth v. Roberts, 108 Mass. 296.

The foregoing are the only exceptions argued. No evidence was offered of any justification, but the defence consisted in a denial of the alleged acts.

Exceptions overruled.

C. W. Rowley, for the defendant Bishop.

J. D. McLaughlin, Second Assistant District Attorney, for the Commonwealth.