State v. Willson ( 1925 )

BURNETT, J.

There is an Oregon statute reading thus:

“If any person shall administer to any woman pregnant with a child any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall be necessary to preserve the life of such mother, such person shall, in case the death of such child or mother be thereby produced, be deemed guilty of manslaughter. ’ ’ Or. L., § 1900.

The grand jury of Union County returned an indictment against the defendant on February 5, 1924, the charging part of which reads as follows:

* “The said E. O. Wilson on the 2d day of November, 1923, in the county of Union and State of Oregon, then and there being, did then and there unlawfully and feloniously. use a certain metallic instrument, by then and there inserting said instrument in the vagina and uterus of one Hazel Barnes, said Hazel Barnes then and there being pregnant with a child, with the intent then and there thereby to destroy such child, said use of said instrument not being necessary to preserve the life of said Hazel Barnes, and said defendant did then and there unlawfully and feloniously thereby produce the .death of the said child, contrary to the statutes,” etc.

A trial of the defendant on a plea of not guilty resulted in his conviction and he appealed.

It will be observed that there are two classes of acts by which the crime defined by the statute may be committed. They are thé administration of any medicine, drug or substance, and the use or employment of any instrument or other means. It is required by Section 1437, Or. L., that the indictment must contain:

“A statement of the acts constituting the offense in ordinary and concise language, without repetition in such manner as to enable a person of common understanding to know what is intended.”

It appears in evidence, in substance, that the woman named in the indictment went to work for the defendant in his dental office in June, 1922, and continued there until August 17, 1923. She testified that after that date, there was no coitus between her and anyone until November 9,. 1923, and none afterwards. Meanwhile, she had been regular in her menses and suspected nothing until November 18th when her catamenia were due but did not appear. The prosecution relies upon November 9th as the date of the intercourse resulting in the pregnancy charged in the indictment. The whole history of the charge in the indictment is included between November 9, 1923, and December 18th of that year, at which last date she claims she had a miscarriage.

One class of objections to the procedure of the court is that the prosecutrix was allowed to testify, over 'the objection and exception of defendant, that she became pregnant by him, and that he performed two separate and distinct operations upon her resulting in the death of the foetus with which she was at the time pregnant, prior to the one named in the indictment. This is contrary to the rule laid down in this state in the following decisions: State v. O’Donnell, 36 Or. 222 (61 Pac. 892); State v. Dunn, 53 Or. 304 (99 Pac. 278, 100 Pac. 258); State v. Start, 65 Or. 178 (132 Pac. 512, 46 L. R. A. (N. S.) 266); State v. McAllister, 67 Or. 480 (136 Pac. 354). Each of the acts described by the witness, and which were objected to by the defendant, were complete crimes in themselves. If this procedure were permissible, it ought to be laid in the indictment with a continuando, but the statute says that the statement must be without repetition, Or. L., § 1437, and it is axiomatic that the evidence shall correspond with the allegations of the accusing document. One consequence of supporting the procedure allowed in this respect by. the trial court would be that no defendant could know how; many violations of the law he would be called upon to defend upon a single charge, neither would he know when his prosecutions for some offense would come to an end. Another result would be that having narrated in testimony all the instances constituting separate offenses and failing in the prosecution of one, the state could take precisely the same evidence and, by changing the date of the indictment, prosecute a defendant on the same testimony an indefinite number of times. The statute contemplates the statement in the indictment of a single offense, and that the evidence shall be confined to that charge alone of which the defendant has been informed. The principle is settled in this state by the precedents cited.

Another objection to the procedure was that in the face of the allegations of the indictment confining the act to the nse of “a certain metallic instrument,” the state was allowed to produce testimony to the effect that certain drugs and medicines introduced and admitted in evidence were given by the defendant to the prosecuting witness on former occasions for the purpose of producing an abortion and the destruction of the foetus of which she was pregnant in those instances. Likewise, she was permitted to testify that he furnished her the money to buy turpentine which he administered to her to bring about the abortion of the foetus named in the indictment. If the state would prove such conduct it should allege it in the indictment, for it is one of the acts constituting the offense. The state had no right merely to allege the use of an instrument and then add to that proof of the administration or use of a drug with intent to destroy the child.

The defendant also complains of the refusal of the court to give to the jury the following instruction : • •

“L instruct you, Gentlemen of the Jury, that the fact that Hazel Barnes consented to the alleged abortion and the fact of her complicity may be considered by you as affecting her credibility as a witness, and the force and weight of her testimony.”

The instruction is subject to criticism, in that it alludes to “the fact of her complicity.” The weight of authority is to the effect that the female in such instances is not an accomplice, but as stated in Seifert v. State, 160 Ind. 464 (67 N. E. 100, 98 Am. St. Rep. 340):

“The deceased was not strictly an accomplice, but the moral quality of the act and her connection with it were such, as to entitle the appellant to have said instruction given to the jury.”

According to the statement of the case in that precedent :

“At the proper time appellant tendered an instruction to the effect that, in determining what weight should be given to the dying declarations, the jury might consider the fact that according to her own admission therein the declarant had used the catheter upon her person to produce an abortion. The court refused so to instruct, and appellant reserved an exception. ’ ’

The testimony for the state is to the effect that the woman named in the present indictment, accompanied by her sister, went to the defendant, complained that she was pregnant, and sought his assistance to produce an abortion, and so destroy the foetus of which she was then pregnant. There were two of these interviews at each of which, according to her statement, the prosecutrix, her sister and the defendant were present, viz.: on November 20th and 22d. Her motive of shame and dread of the disgrace attendant upon the discovery of her condition would naturally operate strongly on her mind to aid in bringing about the result she desired. She was deeply interested in the question, much more than any other witness, and hence in fairness to the defendant, some such cautionary instruction ought to have been given.

In the instant case no qualified witness had ever seen what could be called a foetus, and no one has said anywhere in the testimony that the child of which the woman was alleged to be pregnant is dead. The prosecutrix relies upon sexual intercourse with the defendant November 9, 1923. She declared that she had frequent desire to urinate and had “morning sickness.” These manifestations are classed as doubtful signs of pregnancy by some authors: 2 Witthaus & Becker, Med. Jur. 554; Draper Legal Med. 173. She testifies that the defendant administered to her turpentine on the twentieth of the same month; and that two days later, on November 22,1923, he introduced a metallic instrument into her uterus. The testimony of her sister is to the effect that after-wards, on December 18, 1923, there passed from the prosecutrix with a clot of blood a piece of what “really looked almost like flesh” about the size of an adult woman’s finger and about one and one half to two inches long. This was not exhibited to her attending physician whom she consulted on November 28th and December 18th and who testifies he saw no foetus. No one pretends to say that it was a foetus or that it was alive or dead. The record is silent as to any indication of development of the different members of the human body on the thing so discharged, though according to respectable authori-' ties a foetus of the size described begins to show traces of eyes, nose, mouth, ears, hands and feet, as well as other characteristics of the human body which would readily distinguish it from a vaginal polypus not due to pregnancy: 1 Peterson, Haines & Webster, Leg. Med. & Tox. (2 ed.), 959; 2 Hamilton, System of Legal Medicine, 477. There is before us no history of pigmentation of the breasts or vulva nor softening of the uterus classed among the probable signs of pregnancy: 2 Witthaus & Becker Med. Jur. 557. It may well be doubted whether the testimony was sufficient in that respect, but for the errors already noted, the judgment is reversed and the cause remanded for new trial.

Reversed and Remanded.

Brown, J., concurs in the result. For the petition there was a brief over the names of Mr. Ed. Wright and Mfr. E. B. Bingo, with an oral argument by Mr. Bingo. Contra, there was a brief over the names of Mr. F. 8. Ivanhoe, Mr. Jesse Crum and Messrs. Green S Hess, with oral arguments by Mr. B. J. (Green' and Mr. Ivanhoe.

Rehearing denied, February 17, 1925.