State v. Unosawa , 29 Wash. 2d 578 ( 1948 )

¹ Reported in 188 P.2d 104. MALLERY, C.J., HILL, and SIMPSON, JJ., dissent in part. Appellant was charged, by information, with the crimes of abortion, manslaughter, and murder in the second degree, as follows:

"Count (1) — . . . and by this Information do accuse JAMES M. UNOSAWA of the crime of ABORTION committed as follows:

"He, the said JAMES M. UNOSAWA, in the County of King, State of Washington, on or about the 1st day of December, 1945, with intent to produce the miscarriage of a woman, one Beulah LeClair, wilfully, unlawfully and feloniously did use certain instruments and other means which at this time are not known to the Prosecuting Attorney, said acts not being then and there necessary to preserve the life of said Beulah LeClair, or of the child with which she was then and there pregnant;

"Count (2) — . . . further do accuse JAMES M. UNOSAWA of the crime of MANSLAUGHTER, committed as follows:

"He, the said JAMES M. UNOSAWA, as a part of the transaction alleged in Count 1 and connected therewith, in the County of King, State of Washington, on or about the 1st day of December 1945, wilfully, unlawfully and feloniously killed an unborn quick child, of which one Beulah LeClair was then and there pregnant, by injuring the said mother of said child by use of certain instruments and other means which at this time are not known to the Prosecuting Attorney;

"Count (3) — . . . further do accuse JAMES M. UNOSAWA of the crime of MURDER IN THE SECOND DEGREE committed as follows:

"He, the said JAMES M. UNOSAWA, as a part of the transactions alleged in Counts 1 and 2 and connected therewith, in the County of King, State of Washington, on or about the 1st day of December, 1945, did effect the death of the said Beulah LeClair while then and there in the commission of felonies, to-wit: abortion and killing of a quick child."

The jury returned a verdict of guilty as to each count. A motion was made in arrest of judgment, and for a new trial. The motion for a new trial was denied, as was the motion in arrest of judgment as to counts Nos. 1 and 2, but was granted as to count No. 3.

Beulah LeClair was an unmarried, half-breed Indian girl, about eighteen years of age. She was strong, healthy, and up to the time of the events which are about to be related, performed all kinds of housework — washing clothes, ironing, cooking meals, and taking care of her sister's babies. She attended shows and dances and never complained of any sickness.

On November 23, 1945, Beulah contacted Leo Mayo, a Filipino, who was related by marriage to her sister. She told him that she was five months pregnant, and "wanted to get rid of the baby." He took her to Seattle, where he got in touch with Mrs. Gaudia, a Filipino nurse, employed at Providence hospital. Mrs. Gaudia called Dr. Unosawa, a licensed osteopathic physician and surgeon, whom she had known for fifteen years, and made arrangements for an appointment.

On November 29th, she took Beulah and Mrs. Louise Adams, Beulah's sister, to the doctor. At this time, Mayo gave Mrs. Gaudia two hundred fifty dollars. She gave one hundred fifty dollars to the doctor and returned one hundred dollars to Mayo.

The doctor examined Beulah in the presence of Mrs. Gaudia. Mrs. Adams, the sister, remained in a outer room. The doctor and Mrs. Gaudia testified that, by the use of a stethoscope, they could detect life in the fetus at that time. The doctor testified that he packed the vagina in order to prevent a miscarriage.

They went back to the doctor's office on Saturday, December 1st, arriving about nine-thirty a.m. Mrs. Gaudia and Beulah again went into the doctor's office, the sister remaining outside in the waiting room. The sister testified that, between the two trips to the doctor's office, there had been no change in Beulah's condition. She was happy and healthy, and in the evenings they had gone to shows together. The sister said that she had slept with Beulah and had been present when she took a bath, and had at no time noticed any packing.

Mrs. Gaudia and the doctor testified, however, that, upon her return to the office, they noticed a distinct change in Beulah's condition; that she was wan and highly nervous; that she told them she had deliberately fallen down in order to bring on a miscarriage, and that when the packing was removed she hemorrhaged considerably. The doctor testified that he could not then detect a heartbeat in the fetus, and concluded that life was extinct. He repacked the vagina, but this did not stop the hemorrhaging. He then decided that the placenta was displaced; that an emergency thereby existed requiring the removal of the fetus in order to save the girl's life.

He said that he then prepared to remove the placenta and as much of the fetus as he possibly could. In order to make the removal of the fetus easier, it was broken up into pieces and removed.

Mrs. Gaudia left at two-thirty p.m. to go back to work. From then on the doctor worked alone. During all of this time, the sister waited in the outer room. After the operation, the girl was put to bed in a small adjoining room. Finally, about six-thirty p.m., the doctor and his wife and the sister took Beulah down the back steps to his car and drove Beulah and her sister to their hotel. That night, about eleven p.m., the doctor drove Mrs. Gaudia to the girl's hotel. He remained in the car, and she went up and took Beulah's temperature, which was ninety-nine degrees. The next morning, about eleven-thirty, Mrs. Gaudia and the doctor went back to the hotel. They both went up to the room and found that Beulah was then definitely worse. Her temperature was one hundred three degrees. An ambulance was called and arrangements made to take her to Providence hospital. She was admitted to the hospital at one-twenty p.m. and died at one-fifty p.m.

A few days later, the doctor was taken to the police station for questioning. He gave statements to Mr. Shorett and Captain Mahoney of the police department. These statements were in general quite similar to his testimony at the trial. He did not then, however, mention that the girl had tried to abort herself.

On Christmas Eve, 1945, a messenger came to Captain Mahoney's door with a beautiful azalea plant and an envelope containing two hundred dollars in twenty-dollar bills, and the following note:

"Dear Mr. Mahoney:

"I would be very much thankful to you if kindly fix up my case helping my attorney Mr. Schermer.

"I'll see you again when the case is over.

"Thanking you in advance for your favor.

"Most respectfully yours — "Dr. James M. Unosawa"

Captain Mahoney immediately called the prosecutor and the chief of detectives. As a result of this, the doctor and his attorney were called to the prosecutor's office a few days later. The doctor explained that he had sent the plant and the money, not as a bribe, but merely as a token of good will at Christmas time. The money was returned to the doctor.

In justice to Mr. Schermer, we wish to state that this action of his client was done entirely without his knowledge and consent, and that he at all times conducted himself in an honorable and ethical manner.

Then, in March, shortly prior to the time the case was to go to trial, the doctor sent Mrs. Gaudia to Leo Mayo with seventy-five dollars and the following, which he had typed in his office:

"Why the girl came over to see you?

"(A) She took medicine all the time. Fell down many times. Tried to get rid of the baby inside.

"Lately she started to bleed more and getting weaker. This made her scare and worry, so she came over to me to help her to take over to a doctor.

"Why did you go to Mrs. Gaudia?

"(A) She is my friend and a good nurse. So she might help me getting a doctor.

"About the money

"The girl asked me, so I gave to her.

"Her physical conditions.

"Very thin, pale, weak. Anemic. Can not do any hard work. Always complain sick. After she became family-way, she got weaker and weaker."

The doctor testified that this was done in entirely good faith; that it was his understanding of the situation; and that he thought that it was also Mayo's understanding.

On December 3, 1945, Dr. Gale Wilson performed an autopsy on the body of Beulah LeClair. No useful purpose would be served in detailing his testimony. He did testify, however, that part of the fetus remained in the body, and that the cervix was ruptured. He concluded that an incomplete abortion had been performed with the use of an old-fashioned hook or sponge forceps.

Misconduct is charged on the part of the deputy prosecutor in his opening statement in which he said: "The autopsy will show one of the worst cases of butchery —" Immediately, the following occurred:

"MR. SCHERMER: Objection. It is most improper at this time. THE COURT: State the ultimate facts. MR. SCHERMER: I ask the jury be instructed to disregard it. THE COURT: Yes, don't argue it now. MR. SHINN: The report will show that the uterus was torn, a large hole two by three inches. There was no part of the baby within the uterus but the head or a portion of the baby was found in the abdomen, outside the uterus. The colon was severed and torn apart. The abdomen was filled with fetal matter as well as blood."

[1] It is argued that the reference to "butchery" was highly prejudicial to this appellant, because of the fact that he was a Japanese and the people were still inflamed with the violence of the recent war with Japan. Although we feel that prosecutors should be extremely careful, especially in their opening statements, not to make inflammatory remarks which might prejudice the minds of the jury against the accused, still we feel that in this instance the trial court did in effect let the jury know that the word, "butchery," should not be considered by them. We find no prejudice to the appellant because of this occurrence. However, if the testimony of the witnesses during the trial had not shown any "butchery," then such reference in the opening statement would not have been justified and would have been prejudicial.

[2] We cannot follow appellant's contention that the trial court admitted evidence of the negligence of the appellant in the performance of the operation. During the trial there were three issues before the court and jury, namely, abortion, manslaughter, and second-degree murder. Any testimony which would assist the jury in determining his guilt or innocence as to any of the three charges was relevant. The trial court recognized this throughout the trial and, at all times, protected the appellant from any charge of negligence.

During the trial, the court permitted the state to amend count No. 2 of the information to conform to the proof, by adding the words, "unless the same is necessary to preserve the life of the pregnant mother." This was done under authority of Rule of Practice 12(2), 18 Wn.2d 40-2.

Originally, count No. 2 was charged under Rem. Rev. Stat., § 2396 [P.P.C. § 117-13], as follows:

"The willful killing of an unborn quick child, by any injury committed upon the mother of such child, is manslaughter."

After the amendment, the charge was in violation of Rem. Rev. Stat., § 2397 [P.P.C. § 117-15], as follows:

"Every person who shall provide, supply or administer to a woman whether pregnant or not, or shall prescribe for or advise or procure a woman to take any medicine, drug or substance, or shall use or employ, or cause to be used or employed, any instrument or other means, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve her life, in case the death of the woman or of any quick child of which she is pregnant is thereby produced, shall be guilty of manslaughter."

[3] In order to convict appellant of manslaughter under the above statute, the state was required to charge and prove the following:

(1) the use of instruments or other means, with intent thereby to produce the miscarriage of Beulah LeClair;

(2) that the above-mentioned act was not necessary to preserve her life;

(3) that she was then pregnant of a quick child, which died as a result thereof.

The court gave instruction No. 11:

"To convict the defendant of the crime of manslaughter as charged in Count 2 of the Information, the State must prove to you beyond a reasonable doubt: —

"(1) That on or about the 1st day of December, 1945, this defendant, JAMES M. UNOSAWA, did use certain instruments or other means with intent thereby to produce the miscarriage of one Beulah LeClair;

"(2) That the said Beulah LeClair was then and there pregnant with a quick child which then and there died;

"(3) That the death of the said quick child was caused by the defendant, JAMES M. UNOSAWA, as a result of the induced miscarriage of said Beulah LeClair and injuries to said quick child;

"(4) That said induced miscarriage was not necessary to preserve the life of the said Beulah LeClair or her quick child;

"(5) That such acts so occurred in King County, Washington,

"If you find from all the evidence admitted in this case that the State has proved beyond a reasonable doubt each and all of the foregoing elements of the crime charged in Count 2 of the Information, then it is your duty to return a verdict of Guilty of MANSLAUGHTER, as charged in Count 2 of the Information herein."

All of the necessary elements of the crime of manslaughter were included in the instruction. However, when we examine count No. 2 of the information as amended, we find no allegation that the instruments were used with intent to produce the miscarriage of Beulah LeClair. Rem. Rev. Stat., § 2057 [P.P.C. § 132-9], provides:

"The indictment or information must be direct and certain, as it regards: —

"1. The party charged;

"2. The crime charged; and

"3. The particular circumstances of the crime charged, when they are necessary to constitute a complete crime."

[4] The state recognized its obligation to charge all of the elements necessary to constitute the crime of manslaughter, under § 2397, when it moved to amend count No. 2 to include the element that the induced miscarriage was not necessary to preserve the life of the pregnant mother. But it neglected to include the charge that the acts were done with intent thereby to produce the miscarriage of the girl. Count No. 2, as originally filed, charged the crime of manslaughter under § 2396. Count No. 2, as amended, did not charge manslaughter under either § 2396 or § 2397. This defect could not be corrected by an instruction. InState v. Severns, 13 Wn.2d 542, 125 P.2d 659, we said:

"We are firmly of the opinion that, where, as in the instant case, the information charges that the crime was committed in a particular way, under one subdivision of a statute, it is error for the trial court to instruct the jury, as was done in this case, that they might consider other ways or means by which the act charged might have been committed, regardless of the range which the court may have permitted the testimony to take."

The state contends that count No. 1, charging abortion, contained all of the elements required by the manslaughter statute, and that appellant was advised thereof by the following allegation in count No. 2: "He, the said JAMES M. UNOSAWA, aspart of the transaction alleged in count 1 and connectedtherewith." Rem. Rev. Stat., § 2059 [P.P.C. § 132-13], provides:

"When there are several charges against any person, or persons, for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments or informations the whole may be joined in one indictment, or information, in separate counts; and, if two or more indictments are found, or two or more informations filed, in such cases, the court may order such indictments or informations to be consolidated."

[5] Prior to the enactment of § 2059 in 1925, it was required that the information must charge but one crime. This section merely permits two or more connecting acts or transactions, growing out of the same acts or transactions, to be included in one information, in separate counts. The law still requires the charge to be direct and certain as to each act or transaction. As stated in 42 C.J.S. 1081, Indictments and Informations, § 152:

"In charging in the same indictment or information separate and distinct offenses which may properly be so joined, as considered infra sec. 178, separate counts may and should be used to set out each offense, each count of an indictment or information being in form a distinct charge of a separate offense. So, where several counts are employed in the indictment to describe the same transaction in different ways, each count should charge accused as if he had committed a distinct offense, the counts being regarded as separate indictments. Subsequent allegations, insufficient in themselves to form a complete charge, but forming such a charge in connection with those preceding, will not be construed as a separate count."

"While it has been said that the indictment may be read as a whole in determining the allegations of a particular count thereof, it is usually held as a well settled general rule that each count of an indictment or information must be a complete charge of crime in itself, especially where the offenses are distinct. Each count should contain all the allegations necessary to state the offense sought to be charged in such count, since, in the absence of express reference, one count is not aided by others." 42 C.J.S. 1083, § 153.

[6] The charges contained in one count may, by reference, be incorporated in a subsequent count, provided it can be determined that the purpose was to incorporate the charges, not merely to refer to them.

"Reference to matter in another count must be made with such definiteness and specificness that the matter referred to is clearly and accurately incorporated in the referring count. Where a count expressly incorporates by reference all the provisions of the other counts, such provisions are deemed to be in the count for all purposes." 42 C.J.S. 1084, § 154 (b).

"It is suggested that the description of the first count may be considered in aid of the second count. It is true that by appropriate reference allegations may be carried from one count to another, but ``the reference should be sufficiently full, in effect, "to incorporate the matter going before with that in the count in which it is made."'" Hood v. United States,43 F.2d 353.

A proper incorporation by reference was approved in UnitedStates v. Main, 28 F. Supp. 550, where it was charged:

"``The said scheme and artifice, are herein incorporated by reference to Counts One to Six, inclusive, of this indictment and herein realleged as if again set forth at length and in full.'"

The court said, in approving the foregoing:

"``It is also an established rule that one count in an indictment may by proper reference incorporate, without repeating, the allegations more fully set out in another count. In such case the reference should be clear, specific, and leave no doubt as to what provision of another count is intended to be incorporated.' Asgill v. United States,60 F.2d 780, 783."

[7] The state, in count No. 2, in referring to count No. 1, said: "He, the said JAMES M. UNOSAWA, as a part of the transaction alleged in Count 1 and connected therewith, in the County of King. . . ." The sole purpose of the reference was to comply with the general rule that an information must show on its face that all separate counts are based on the same act or transaction. It was not used to incorporate by reference the acts alleged in count No. 1. This is further shown by the inclusion of the phrase, "Contrary to the statute in such case made and provided," at the conclusion of count No. 2. At the time the information was originally drawn, the statute referred to was § 2396. After the amendment, it referred to § 2397.

[8] It could be contended that, in this case, we should adopt the "common understanding" rule. That rule is to the effect that an information will be considered sufficient, if a person of common understanding can, from the allegations of the information, know the exact nature of the charge against him. We have no quarrel with that rule, provided the information itselfcharges a crime. If the information does not charge a crime, then there is no charge upon which the defendant can be tried or convicted.

Before applying the common understanding rule, we must first determine whether or not the information charges all of the statutory elements of the particular crime involved. Upon being satisfied as to this fact, we can then, and not until then, look to the information as a whole and determine whether a man of common understanding can know the exact nature of the charges against him. To state the proposition in another way, the common understanding rule cannot be applied in any case, unless and until it is first determined that the information itself does charge a crime.

The facts stated in count No. 2 of the information, as amended, do not charge the crime of manslaughter, and appellant's motion in arrest of judgment, as to this count, should have been granted. [9] Appellant contends that count No. 1 should not have been submitted to the jury, because the state failed to prove that the operation was not necessary to save the life of Beulah LeClair. Without discussing the evidence, we hold that there was sufficient testimony to go to the jury.

The judgment and sentence will be affirmed as to the crime of abortion, count No. 1, and reversed as to the crime of manslaughter, count No. 2.

BEALS, MILLARD, STEINERT, ROBINSON, and JEFFERS, JJ., concur.