Public-domain · open source
OpenJurist

124 Mass. 21

Commonwealth v. Drake

Massachusetts Supreme Judicial Court

Decided January 1, 1878

Massachusetts Supreme Judicial Court · decided 1878-01-01

<p>No exception lies to the refusal of a judge, on the trial of a criminal case, to grant a continuance, on account of the absence of a material witness.</p> <p>On the trial of an indictment for procuring an abortion, there was evidence that there had been a miscarriage, effected by violence; that the woman upon whom the operation was performed, in company with another woman, went to the defendant’s house for the purpose of procuring an abortion; that the former disclosed her condition to the defendant, and was alone with her for about fifteen minutes, her companion having been sent out of the room; that on the following night she experienced great suffering; that two days afterwards she and her companion left their lodging hanse and went to the defendant’s house, where they remained two or three days, the former being under the defendant’s care. A hack driver testified that he drove the two women from their lodging house to the comer of the street where the defendant lived, and left them upon the sidewalk, but did not know where they went. The defendant denied that either of the women was ever in her house. One of the women, who had always lived in another town, testified accurately as to the interior of the defendant’s house, as was proved by other evidence. Held, that this evidence was sufficient to warrant a verdict of guilty. Held, also, that, even if the woman’s companion could be considered as an accomplice, there was evidence from which the jury would be warranted in finding that her testimony was sufficiently corroborated.</p>

Relies on Commonwealth v. Scott · Commonwealth v. Boynton · Commonwealth v. Larrabee

Good law ✅— No negative treatment on recordhow we know

Decided 1878-01-01

How this case has been cited

Cited by 12 later decisions — most recently November 1949

11 state decisions

4018781880189019001910192019301940decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Morton, J.

¶1These exceptions cannot be sustained.

¶2I. The refusal of the presiding judge to grant a continuance or postponement was a matter within his discretion and not open to exception. Commonwealth v. Donovan, 99 Mass. 425.

¶32. The presiding judge properly refused to rule that there was no evidence to warrant the jury in finding the defendant guilty. It was proved that the miscarriage of Sarah E. Sullivan was effected by violence. The witness Wyman testified that she and Sullivan went to the defendant’s house for the purpose of procuring the abortion ; that Sullivan disclosed her condition to the defendant and was alone with her for some fifteen minutes, the witness being sent out of the room; that, on the night following, Sullivan suffered great pain, and that, two days after, they left the hotel and went to the defendant’s house, where they remained two or three days, Sullivan being under the care of the defendant. This testimony, if believed, taken in connection with the fact that the defendant falsely testified that the two girls were never in her house, would justify the jury in finding the defendant guilty.

¶43. The instructions as to the corroboration of the witness Wyman were sufficiently favorable to the defendant. Upon the facts disclosed in the bill of exceptions, the witness does not appear to have been an accomplice of the defendant. Commonwealth v. Boynton, 116 Mass. 343, and cases cited.

¶5But, if she was an accomplice, the instructions that the jury might consider “ the testimony of Stickney, as also the fact that Wyman was able to describe accurately the interior of the defendant’s house, and the fact, if they so found, that Sullivan *25and Wyman were taken into the house of the defendant on the evening of May 12,” as corroborative of her testimony, was correct.

¶6The fact that the two girls went to the defendant’s house on the evening of May 12 was material, the defendant having sworn that they were never in her house. Stickney testified that on that evening “ he drove the two girls in his hack from their lodging to the corner of D Street and Broadway, in South Boston, where the defendant lived, and left them upon the sidewalk, but did not know where they went.” This tended to corroborate Wyman upon an issue which was a material one. Commonwealth v. Larrabee, 99 Mass. 413. Commonwealth v. Scott, 123 Mass. 222. And, if the testimony satisfied the jury that the girls did go to the defendant’s house on the evening of May 12, that fact would tend to corroborate Wyman upon other parts of the case.

¶7The fact that Wyman’s description of the internal arrangements of the defendant’s house was accurate also tended to corroborate her testimony. As we have seen, the question whether Wyman had ever been in the house was a material issue. This distinguishes the case from Commonwealth v. Bosworth, 22 Pick. 397, cited by the defendant.

¶8The fact that the interior of the house was as she described it was proved by other witnesses. This fact tended to show that "she had been inside the house, and thus to confirm her testimony.

¶9The argument that she had opportunity to confer with other witnesses, and thus obtain a description of the house, goes to the weight of the testimony and not to its competency as corroborative evidence. Exceptions overruled.

/124/mass/21 · .json · Public domain