Commonwealth v. Wood , 77 Mass. 85 ( 1858 )

Thomas, J.

This case is before us upon exceptions to the admission of evidence by the presiding judge at the trial, to his instructions to the jury, and upon a motion for arrest of judgment.

1. As to the admission of evidence. The testimony of Mrs. Graves was rightly admitted. The objection that the facts occurred or appearances were observed a month after the alleged abortion does not render the evidence incompetent, though it may affect its weight. That they were not connected with the abortion we cannot presume. We cannot know that the results of the injury did not continue thus long.

The same remarks apply with greater force to the testimony of Mrs. Stebbins.

The testimony of Mrs. Chaffee, in explanation and reply to the testimony of Mrs. Morse, was clearly competent. The government had offered to show that the abortion was caused by the defendant in January. The defendant put in the testimony of Mrs. Morse tending to show that the complainant was pregnant in May. This had no other competent purpose than to show that an abortion did not take place in January. To meet this, the Commonwealth offered evideice to show a new cause for the pregnancy in May, if it existed, to wit, sexual intercourse with the defendant. If the defendant suffered by the testimony, it is not to be overlooked that the attempt to show a pregnancy in May, as the continuation of that in January, rendered the evidence necessary for the purposes of truth and justice.

2. As to the prayers of the defendant for instructions to the jury, and the instructions given upon the subjects to which they refer.

The first prayer is as to the definition of the malice necessary to. constitute the offence. The defendant insisted that the acts must have been done maliciously; and that to be done maliciously, they must have been done either out of a spirit of wanton cruelty or wicked revenge. Under the St. of 1845, c. 27, the act would seem to be malicious if it had no lawful justification. But it would clearly be malicious if done from any wicked or base motive, and the consent of the woman or the desire to screen her or himself from exposure and disgrace would furnish no justification for the act. The instructions of the court upon this point were certainly sufficiently favorable to the defendant.

The court was also requested to instruct the jury that a lawful justification “ would exist if the child with which Sarah Chaffee was pregnant was not a live child.” If by this was meant that the mother had not reached the stage of pregnancy in which she would be “ quick with child,” and when to procure an abortion would be an offence at common law, the prayer in our opinion misconceives the purpose of the statute, which was intended to supply the defects of the common law, and to apply to all cases of pregnancy. If the defendant meant to say it would be a legal justification to show that the foetus with which the woman was pregnant had lost its vitality so that it could never mature into a living child, we think the position correct, and that the jury should have been so instructed, if there was any evidence before the jury upon the subject. But the bill of exceptions not only fails to state that any such evidence was given at the trial or offered, but expressly negatives the fact. If there had been evidence that the foetus had lost its vitality, it might have been the duty of the judge to say directly to the jury that if they so found, the case was riot within the statute. Upon the case made by the bill of exceptions there was no occasion for any direction on the matter.

The prayers for instructions as to the credibility of the prircipal witness, Sarah Chaffee, from her supposed relation to the offence as an accomplice, and the credit to be reposed in or withheld from her if she was found to have sworn falsely upon any material point, was rightly refused. We think the court rightly instructed the jury that the woman was not under the statute technically an accomplice; for she could not have been indicted with him for the offence.

Nor was it the duty of the court to say to the jury that if the witness was wilfully false upon any material point, they could place no reliance upon any of her testimony. There is no absolute rule of law of this sort, nor in the nature of things could there be. When competent evidence is before the jury, the degree of faith to be reposed in it, its effect in producing conviction, cannot be governed by any abstract and inflexible rule. The relation of the facts the witness states to the other facts proved in the case may be such, their intrinsic probability and naturalness such, that the jury cannot help believing them. The instructions given to the jury on this subject were good law and all that the case required.

3. Under the motion in arrest of judgment, the indictment is alleged to be defective in six particulars.

The first defect does not, we think, exist. The word *• use ” is not there, but the fact of the use is clearly stated. The second defect does not exist in fact. As to the third, it is sufficient to say that under the Si of 1845, c. 27, it is not necessary to allege that the child was alive or that the woman was quick with child. The fourth is met by the case of Larned v. Commonwealth, 12 Met. 241. The fifth and sixth do not exist.

Exceptions overruled.