Commonwealth v. Follansbee

Lathrop, J. 1. The only ground relied on in the defendant’s brief, in support of the motion to quash the indictment, is that it was not averred in the second count that the woman was pregnant. Such an averment is unnecessary. Commonwealth v. Taylor, 132 Mass. 261. 2. It was within the discretion of the presiding justice to refuse to exclude the witnesses not under examination from the court-room. The authorities on this subject are collected in 1 Greenl. Ev. § 432, and in 1 Bish. Cr. Proc. (3d ed.) § 1189. 3. The testimony of Dr. Haskell was rightly admitted. It related to the condition of Ida C. Stewart ten days after the act alleged to have been done by the defendant. Similar evidence was admitted in Commonwealth v. Wood, 11 Gray, 85, although in that case a month had elapsed between the operation and the time the witness testified to. 4. The several counts of the indictment set forth separate offences, which were properly joined in one indictment, and upon one or more of which it was competent for the jury to find the defendant guilty. Commonwealth v. Brown, 121 Mass. 69. The first and third requests for instructions were properly refused, and there was no error in the instructions given. 5. It is well settled in this Commonwealth that, on an indictment of this kind, the person on whom the operation is alleged to have been performed is not an accomplice. Commonwealth v. Wood, 11 Gray, 85. Commonwealth v. Boynton, 116 Mass. 343. Commonwealth v. Brown, 121 Mass. 69. The fifth request for instructions was properly refused. 6. The fourth and eleventh requests for instructions were [278] also properly refused. The presiding justice left to the jury the question whether Maud Stewart was an accomplice, and gave most of the defendant’s requests for instructions on the weight to be given to the testimony of an accomplice. Whether the twelfth and thirteenth requests were given or not given does not appear. We cannot say, as matter of law, that the evidence showed that Maud Stewart was an accomplice, or that her testimony was not corroborated. The only evidence tending to sfiow that she was an accomplice is that relating to her procuring ether, which the defendant administered to Ida C. Stewart; but the exceptions do not show that she knew the purpose for which it was to be used. Her testimony was corroborated by her sister and by Mrs. Higgins. Exceptions overruled.