329 Mass. 470

October 27, 1952 - November 26, 1952

Bristol County


A charge in an indictment, based on G. L. (Ter. Ed.) c. 272, Section 19, that the defendant with intent to procure the miscarriage of a woman "did unlawfully use a certain instrument, to wit, a syringe upon . . . [her] body" was supported by evidence that with such intent the defendant put into her womb a syringe merely as a vehicle for introducing soap and water. [472]

Evidence that the defendant in an indictment gave a woman ergot capsules and told her to take them if certain other treatment which he had given her with intent to procure her miscarriage "did not work" was sufficient to support a charge in the indictment, based on G. L. (Ter. Ed.) c. 272, Section 19, that with such intent he "did unlawfully administer to her a certain drug, to wit, ergot," even though there was no evidence that she ever took the ergot. [472]

Evidence of expectation of death by a woman when she made a statement the day before her death while desperately ill at a hospital was sufficient to support the introduction of the statement as a dying declaration under G. L. (Ter. Ed.) c. 233, Section 64, at the trial of an indictment charging acts in violation of c. 272, Section 19, resulting in her death. [472-473]

INDICTMENT, found and returned on November 8, 1951.

The case was heard in the Superior Court by Smith, J.

James S. Seligman, for the defendant.

John J. Harrington, Assistant District Attorney, for the Commonwealth.

QUA, C.J. The defendant has been tried and found guilty by a judge of the Superior Court sitting without jury upon an indictment the material portion of which reads: "That Frank Viera on or about the sixteenth day of September, 1951, with intent to procure the miscarriage of Elsie Pimental did unlawfully administer to her a certain drug, to wit, ergot, and did unlawfully use a certain instrument, to wit, a syringe upon the body of said Elsie Pimental

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and in consequence thereof said Elsie Pimental died." The case is here after sentence upon the defendant's appeal and assignments of error, with the transcript of the evidence, under G. L. (Ter. Ed.) c. 278, Sections 33A-33G, as amended in Section 33E by St. 1939, c. 341.

The indictment is based upon G. L. (Ter. Ed.) c. 272, Section 19, which is printed in full in the footnote. [Note 1] It will be observed that this statute sets forth in the alternative a number of related offences (or, as has been said, a number of methods of committing the same offence) differing in greater or less degree. The indictment charges two of these offences (or methods) conjunctively. Nevertheless the defendant could be convicted if the Commonwealth proved only one of the offences (or methods) charged. Commonwealth v. Brown, 14 Gray 419, 430-431. Commonwealth v. Martin, 304 Mass. 320, 322-323. Commonwealth v. Hersey, 324 Mass. 196, 201. But the Commonwealth must prove at least one of the charges as laid in the indictment. Commonwealth v. Stone, 300 Mass. 160, 163. It was not necessary to show that either the miscarriage or the death was in fact caused by anything the defendant did. Either use of an instrument or administering ergot with the necessary intent would in itself constitute the crime. The woman need not be pregnant at all. Commonwealth v. Nason, 252 Mass. 545. Commonwealth v. Hersey, 324 Mass. 196, 207-208. Commonwealth v. Taylor, 132 Mass. 261. Commonwealth v. Follansbee, 155 Mass. 274, 277. Commonwealth v. Surles, 165 Mass. 59, 61. Commonwealth v. Cheng, 310 Mass. 293, 299. Death need not be alleged. If it occurs, it is the nature of an aggravation of the offence and affects only the penalty. Commonwealth v. Wood,

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302 Mass. 265, 272. We think there was sufficient evidence to sustain both charges as laid. For convenience we will deal with the second charge first.

There was evidence, admitted without objection, of an admission (perhaps more properly called a confession) by the defendant to the effect that with the intent to procure a miscarriage he had dissolved soap in hot water, put it in a syringe, put the syringe into the womb of Elsie Pimental, and forced the water into her body and that he had done this because he had heard that "this would work." There was evidence that a miscarriage occurred not later than the second day afterwards. The syringe was an "instrument" used "upon the body of . . . Elsie Pimental," even though it was used only as a vehicle for the introduction of soap and water. There was evidence of an intent to procure a miscarriage. This was enough.

The evidence on the first charge of the indictment -- that with intent to procure a miscarriage the defendant did unlawfully administer ergot to Elsie Pimental -- was that he gave her four ergot capsules and told her to take them if what he had done, that is, the soap and water treatment, "did not work." There was no evidence that she ever took any of the ergot, or that what he had done "did not work." We think no such evidence was required. In our opinion it was enough if he supplied the drug to her with the necessary intent. In a fair sense one who himself supplies a drug to be taken "administers" the drug. No narrow construction should be given to the word "administers." As used in the statute, it is contrasted with "advises" and "prescribes," which are appropriate words for use in instances where the defendant has not himself supplied the drug. The statute was intended to be sufficiently comprehensive to include all methods of procuring an unlawful abortion.

There was no error in admitting a dying declaration of Elsie Pimental implicating the defendant. G. L. (Ter. Ed.) c. 233, Section 64. This declaration was made in a hospital on the day before her death. There was ample evidence that she was then desperately ill. She was in an oxygen

Page 473

tent. Her voice was weak. Her doctor had told her that her condition was poor. The last rites of the church had been administered to her. While she did not expressly say that she had abandoned every last flicker of hope, she did say that she was very sick and did not expect to recover and did expect to die, and that she would make a dying declaration. The evidence of expectation of death may not perhaps have been quite as strong as that held sufficient in Commonwealth v. Hebert, 264 Mass. 571, 576-577, and Commonwealth v. Polian, 288 Mass. 494, 497-498, but it was at least as strong as that in Commonwealth v. Hoff, 315 Mass. 551, 552-553.

What we have said covers all the assignments of error that have not been waived.

Judgment affirmed.


[Note 1] "Whoever, with intent to procure the miscarriage of a woman, unlawfully administers to her, or advises or prescribes for her, or causes any poison, drug, medicine or other noxious thing to be taken by her or, with the like intent, unlawfully uses any instrument or other means whatever, or, with like intent, aids or assists therein, shall, if she dies in consequence thereof, be punished by imprisonment in the state prison for not less than five nor more than twenty years; and, if she does not die in consequence thereof, by imprisonment in the state prison for not more than seven years and by a fine of not more than two thousand dollars."