Commonwealth v. Surles

42 N.E. 502, 165 Mass. 59, 1895 Mass. LEXIS 16

Opinion

Allen, J.

1. It must now be assumed that the jurors who were examined were informed as to the case about to be tried, so far as to enable them to answer the questions understandingly. If this were not so, the defendant should have so stated in his bill of exceptions. His omission to say anything about it will not enable him to maintain that they did not know.

2. There was no error in refusing to put to the jurors the questions requested by the defendant. They added nothing material to the questions which were put.

3. The averment of pregnancy was unnecessary. Pub. Sts. c. 207, § 9. Commonwealth v. Taylor, 132 Mass. 261. Commonwealth v. Follansbee, 155 Mass. 274. If, being alleged, it was necessary to prove it, it was not necessary to go further, and prove that the foetus at the time of the defendant’s acts had vitality, so that in the course of nature it could mature into a living child. Even if the foetus had then ceased to have such vitality, pregnancy would not cease till the woman was delivered of it. Fxeeptions overruled.