Commonwealth v. Adams , 127 Mass. 15 ( 1879 )

Morton, J.

The defendant seasonably filed a motion to quash the indictment. We need consider it only so far as applicable to the second count, the jury having returned a verdict of not guilty upon the first count.

1. The second count is framed under the Gen. Sts. c. 168, § 8, which provides that “ whoever aids in the commission of a felony, or is accessory thereto before the fact, by counselling, hiring or otherwise procuring such felony to be committed, shall be punished in the manner prescribed for the punishment of the principal felon.” The count, after averring the commission of the felony by some person unknown, alleges that the defendant “ before the said felony and abortion was committed in manner and form aforesaid, to wit, on the eleventh day of November in the year of our Lord one thousand eight hundred and seventy-eight, with force and arms, at Chelsea aforesaid, did feloniously and maliciously incite, move and procure, aid, counsel, hire and command the said person as aforesaid unknown the said felony and abortion, in manner and form aforesaid, then and there to do and commit.”

This sufficiently charges the offence of being an accessory before the fact to the felony described. It is clearly insufficient as a charge that the defendant was present aiding and assisting in the commission of the principal felony, and so was a principal in the second degree under the Gen. Sts. e. 165, § 9. The word “ aid ” might be applicable to such a charge, but, taken in connection with the context, and especially with the allegation that the aid was rendered “ before the said felony and abortion was committed in manner and form aforesaid,” no construction is admissible except that it was intended to, and does, charge that the defendant was an accessory before the fact to the felony. The defendant contends that the indictment is insufficient, because, although it alleges that the principal felon unlawfully used some unlawful means, with the intent to procure an abortion, yet it is not alleged that the defendant incited or procured said acts to be done with a like intent, or with any unlawful intent. But the allegation that the defendant maliciously and feloniously incited and procured the principal to commit the felony, ex vi termini, imports that she acted with an unlawful intent. An innocent person, with no knowledge that a felony is to be committed, cannot be said to incite, or hire, or procure a felony to be committed. The allegation of the indictment necessarily involves and requires proof of a guilty knowledge or intent on the part of the defendant. The form of the indictment in this case is like the form given in approved books of precedents, and used in previous cases which have come before this court. Stark. Grim. PL (2d ed.) 281. 2 Chit. Grim. Law (5th Am. ed.) 5. Archb. Grim. Pl. (10th ed.) 686-689. Davis Grim. Justice, (3d ed.) 289—290. Commonwealth v. Brooks, 9 Gray, 299.

2. The defendant’s second reason for quashing the indictment is because the phrase “ by means of the said unlawful means as aforesaid ” the said Anna died, is unintelligible. This is a- sufficient allegation that she died by reason of the use of the unlawful means; but it is now unimportant, as the jury have found that she did not die in consequence of the unlawful acts done to produce the abortion.

3. The defendant’s objection that the two counts of the indictment are improperly joined, there being no allegation that they are different descriptions of the same act, cannot prevail. The two counts do not charge different offences, but the same offence, the only difference being in the allegations of the means by which it was committed. It has been usual to join several counts charging the same offence by different descriptions. The St. of 1861, o. 181, was not intended to impose upon the criminal pleader new restrictions, but to enable him to join several counts describing different offences which could not be joined at common law. Commonwealth v. O’Connell, 12 Allen, 451. Commonwealth v. Cain, 102 Mass. 487. But if there had been a misjoinder of these two counts, it would have been cured by the verdict of the jury acquitting the defendant upon the first count. Commonwealth v. Packard, 5 Gray, 101. Commonwealth v. Holmes, 103 Mass. 440.

For these reasons, we are of opinion that the motion to quash was rightly overruled.

We are also of opinion that the exceptions taken at the trial must be overruled. . The court properly refused to rule that there was no evidence to justify a verdict of guilty. The evidence tended to show that the defendant received the said Anna F. Clark to board, knowing her condition, for the purpose of having an abortion procured upon her, and that she procured a physician to operate upon her and produce the abortion. It was for the jury to say whether it satisfied them that she was an accessory before the fact to the abortion.

The court also rightly refused to rule that the jury could not convict the defendant when they were satisfied that the death of the said Anna was in consequence of the means used to produce an abortion. The allegation that the victim of the abortion died in consequence thereof is only an allegation of an aggravation of the offence charged. Without it, a complete offence is set out in the indictment. Commonwealth v. Thompson, 108 Mass. 461, and cases cited. The jury might properly convict of the offence charged without the aggravation. It is sufficient to prove so much of the offence charged as constitutes an offence punishable by law. Commonwealth v. Griffin, 21 Pick. 523. Larned v. Commonwealth, 12 Met. 240. Commonwealth v. O'Brien, 107 Mass. 208.

The only remaining exception is that taken to the order of the court that the verdict should be taken and recorded. This exception cannot be sustained. When the jury returned into court and stated through the .foreman that they had agreed that the defendant was guilty of being an accessory before the fact to the crime of abortion, but had not agreed whether the death of the victim of the abortion resulted therefrom, the district attorney in good faith offered to enter a nolle prosequi as to that part of the indictment, if the defendant would consent. At this stage of the trial he could not do so without the consent of the defendant. Commonwealth v. Scott, 121 Mass. 33. We cannot see anything objectionable in his making this offer in the case at bar. It could not prejudice the defendant, and the record shows that its effect was favorable to her, as the jury afterwards agreed, acquitting her of this matter of aggravation. Exceptions overruled.