Commonwealth v. Boynton

Morton, J. The court properly refused to give the instruction requested by the defendant. It assumes that the witness Goff was an accomplice of the defendant in the commission of the crime charged. She could not have been indicted as a participator in the offence, and was not an accomplice. This point was decided in Commonwealth v. Wood, 11 Gray, 85, which arose under a statute the same in its legal effect as the statute upon which this indictment is brought. St. 1845, c. 27. Gen. Sts. c. 165, § 9. It was not the duty of the presiding judge to advise the jury to acquit upon the uncorroborated testimony of the witness Goff, and his comments upon her testimony were sufficiently favorable to the defendant, and were not open to exception by him. The motion to quash was also properly overruled. The ground chiefly relied upon is, that there is no sufficient allegation that the act charged was committed upon a woman. The indictment does not in terms allege that Georgiana Goff is a woman, but the language used necessarily imports this. If all the allegations of the indictment are proved, it necessarily shows that the act alleged was committed upon a woman. The only other ground relied on is that there is “ no sufficient allegation of intent, it being uncertain from the indictment whether the intent charged was the intent of the defendant or of the other party to the alleged act; ” but the indictment clearly charges that the defendant committed the acts alleged with the intent to cause and procure the miscarriage of the said Goff, and it admits of no other reasonable construction. We are of opinion therefore that the indictment is sufficient. Exceptions overruled.