Commonwealth v. Holmes

103 Mass. 440

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1869
• Status: Published

Opinion

Ames, J.

It appears to us that the evidence which was objected to by the defendant was material and competent, and for that reason admissible. The witness had been permitted, without objection, to testify to a conversation, the substance and effect of which was that the defendant represented herself as having experience and skill in operations of the kind referred to in the indictment; that she had repeatedly performed them with success; and that she was ready and willing to undertake the performance of such an operation upon Elizabeth B. Blanchard. It was not in form a message directly from the defendant to her, but it was in substance an invitation to her, if she wished to “get rid” of the child with which she was then pregnant, to come to the defendant. The only thing which would give to this conversation any significance or importance would be proof of the fact that it was substantially made known to the person to whose case it applied ; and the evidence to which the defendant objects, if believed, supplies exactly that proof. If followed up, as we are bound to suppose it was, by other evidence tending to show that she left her home afterwards and had communication with the defendant, and that she underwent such an operation, with a fatal result, it would certainly be proper for consideration as one link in a chain of circumstantial evidence that the defendant’s readiness to undertake the operation had been communicated to the patient.

With regard to the objection that the indictment contains two counts without any averment that they are different descriptions of the same act, the difficulty (if any) is entirely relieved by the verdict of not guilty upon the first count, and the nolle prosequi by the district attorney of the same count. See Commonwealth v. Cain, 102 Mass. 487. Exceptions overruled.