Commonwealth v. Tibbetts , 157 Mass. 519 ( 1893 )

Allen, J.

But two points have been argued. The first is that the criminatory articles and letters found by the officer in the defendant’s possession were not admissible in evidence, because the officer had no warrant to search for them, and his only authority was under a "warrant to search her husband’s premises for intoxicating liquors. The defendant contends that under such circumstances the finding of criminatory articles or papers can only be proved when by express provision of statute the possession of them is itself made criminal.

This ground of distinction is untenable. Evidence which is pertinent to the issue is admissible although it may have been procured in an irregular or even an illegal manner. A trespasser may testify to pertinent facts observed by him, or may put in evidence pertinent articles or papers found by him while trespassing. For the trespass he may be held responsible civilly, and perhaps criminally; but his testimony is not thereby rendered incompetent. Commonwealth v. Dana, 2 Met. 329, 337. Commonwealth v. Lottery Tickets, 5 Cush. 369, 374. Commonwealth v. Intoxicating Liquors, 4 Allen, 593, 600. Commonwealth v. Welsh, 110 Mass. 359. Commonwealth v. Taylor, 132 Mass. 261. Commonwealth v. Keenan, 148 Mass. 470. See also Commonwealth v. Ryan, ante, 403. 1 Greenl. Ev. §§ 254 a, 229. 1 Taylor Ev. § 922. 1 Bish. Crim. Proc. (3d ed.) § 246.

The defendant’s second point is that three of the counts upon which she was convicted contained no averment that the woman was in fact pregnant, or that the defendant knew, believed, supposed, or suspected that she was pregnant. Under the statute describing the offence neither of these averments was necessary. Pub. Sts. c. 207, § 9. Commonwealth v. Jacobs, 9 Allen, 274. Commonwealth v. Taylor, 132 Mass. 261. Commonwealth v. Corkin, 136 Mass. 429. Commonwealth v. McDonald, 5 Cush. 365. Commonwealth v. Starr, 4 Allen, 301, 305.

Exceptions overruled.