Pleading, Criminal, Indictment. Evidence, Competency, Admissions, by conduct.
An indictment under R.L.c. 212, § 16, as amended by St. 1905, c. 316, charging the defendant with knowingly distributing and circulating a printed paper conveying notice of a place where directions, information and knowledge might be obtained for the purpose of causing and procuring the miscarriage of women pregnant with child, is sufficient under R.L.c. 218, §§ 17 and 29, if the crime is set forth in the words used in the statutes with a general averment that the defendant committed the act, and no further averment of a guilty knowledge of the contents of the paper is necessary.
At the trial of an indictment under R.L.c. 212, § 16, as amended by St. 1905, c. 316, for knowingly distributing and circulating a card conveying notice of a place where directions and information might be obtained for the purpose of causing or procuring the miscarriage of women pregnant with child, where it appears that the card described in the indictment was given by the defendant to a police officer in disguise in response to an inquiry by him as to treatment for a proposed patient, evidence is admissible describing the rooms where the inquiry was made and the card was given, of the presence there of envelopes addressed to physicians containing similar cards, and of statements made by the defendant to a sergeant of police who entered while the interview was in progress, that the officer to whom she had given the card was a friend of hers, giving a name and address as his, and that she got acquainted with him at a social party two months previous.
At the trial of an indictment under R.L.c. 212, § 16, as amended by St. 1905, c. 316, for knowingly distributing and circulating a card conveying notice of a place where directions and information might be obtained for the purpose of causing or procuring the miscarriage of a woman pregnant with child, where it appears that the card described in the indictment was given by the defendant to a witness for the Commonwealth, who was a police officer in disguise, in response to an inquiry by him as to treatment for a proposed patient, the evidence of the delivery of the card is none the less admissible because it was procured by lying and deceit on the part of the witness, and it is a question for the jury whether the card was delivered voluntarily with a criminal purpose.
BRALEY, J.
Because guilty knowledge of its contents is not specifically averred, and only the general allegation appears that she "knowingly" distributed a circular or advertisement, the defendant's first contention is that no criminal offence has been described, and the motions to quash should have been granted. Commonwealth v. Boynton, 12 Cush. 499. Compare Rosen v. United States, 161 U.S. 29; Price v. United States, 165 U.S. 311. But the indictment follows the language of R.L.c. 212, § 16, as amended by the St. of 1905, c. 316, as to the first of the offences created and defined, and under R.L.c. 218, §§ 17 and 29, the crime charged may be set forth in the words used in the statute, with a general averment that the defendant committed the act, which obviates any further technical description of an evil intent. Commonwealth v. Hersey, 2 Allen, 173, 180. Commonwealth v. Lavery, 188 Mass. 13, 16. If there was any uncertainty as to the particulars of the offence further information would have been furnished upon the defendant's motion if otherwise the charge had not been plainly and substantially stated. R.L.c. 218, § 39. Commonwealth v. Kelley, 184 Mass. 320. Commonwealth v. McDonald, 187 Mass. 581. This course was not taken, and the indictment being sufficient the motions were properly denied.
The defendant's further contention is that in substance the entire testimony introduced by the Commonwealth was incompetent. While the acts made criminally punishable are distinct from the crime of procuring an abortion, evidence describing the rooms with their furnishings, the envelopes addressed to physicians containing similar cards, and the defendant's statements relating to the origin of her acquaintance with the officer to whom she had given the card described in the indictment, was properly admitted, not only as being descriptive either of the defendant's place of business, or of her employment, but also as indicative of her guilty knowledge of the contents of the card. Commonwealth v. Devaney, 182 Mass. 33, 36. Commonwealth v. Bond, 188 Mass. 91, 93, 94. It is true that mere possession of this card was not a crime, for the offence charged is its distribution or circulation as a paper conveying information where operations were performed for the purpose of procuring the miscarriage of pregnant women, but if intentionally handed to a patient who was seeking such treatment the offence would have been complete, and this equally would be true if the receiver was inquiring as to similar aid in behalf of a proposed patient. The weight of the defendant's argument, therefore, is that because it was procured by false representations there was no proof either of distribution or of circulation. Generally solicitation to commit a crime to which the party solicited yields, does not exonerate the wrongdoer, or exempt him from prosecution, and under the statute it is the circulation or distribution with guilty knowledge which is made unlawful, although patients may not be obtained. The intention with which it is put out is the controlling element, and if the defendant issued the card as an advertisement containing the information sought this would be a violation of the statute. If from a desire to obtain patronage she chose to rely upon the officer's statements rather than to require any corroboration before acting upon them such conduct would neither lessen her criminal responsibility, nor render his testimony incompetent if the jury were satisfied that it was delivered voluntarily with a criminal purpose, which was clearly and accurately explained in the instructions given. Commonwealth v. Dana, 2 Met. 329. Commonwealth v. Coleman, 157 Mass. 460, 461. Commonwealth v. Tibbetts, 157 Mass. 519. Commonwealth v. Tucker, 189 Mass. 457, 468. Foster's Crown Cases, 129. Regina v. Williams, 1 C. K. 195.
The requests for rulings not having been argued must be treated as waived, and no error of law appearing the order denying the motions to quash must be affirmed and the exceptions overruled.
So ordered.