State v. Cragun , 85 Utah 149 ( 1934 )

Defendant was charged under section 8118, Comp. Laws Utah 1917 (now 103-2-1, R.S. Utah 1933), in the district court of Weber county with having employed an instrument in and upon a certain designated married woman, whom we shall call the prosecutrix, with intent to produce a miscarriage. A plea of not guilty was entered. Defendant was convicted, and appeals to this court.

Four propositions are presented on the appeal:

I. Was there sufficient corroboration of the testimony of the prosecutrix?

The prosecutrix testified that she was a married woman; that she was the mother of two very young children, of which fact she had informed the defendant; and that, when she first went to the defendant's office on the 28th of January, 1930, she was pregnant and, but for that condition, she was in good health; that defendant examined her, and told her that she had been pregnant for about a month. She asked the defendant if there was any medicine that she could take, and defendant replied that medicine would not do any good; that he could perform an operation and she would be all right. He informed the prosecutrix what the operation would cost, and stated that there would be no danger of her being sick, and that he did not blame her for wanting it done.

She returned to the defendant's office on the 4th of February for the purpose of having the abortion performed, and so advised him and paid him a portion of the agreed fee. At that time she was placed on the operating table in the defendant's office; he inserted an instrument into her vagina, and advised her to return the next day, which she did. On the return visit he used the same instrument which he had used before, and advised her that she would be all right. She then paid him the balance of the fee.

Prosecutrix returned again on the 12th of February, and advised defendant that she was not feeling well, and had not yet started to menstruate. He made another examination, and stated that there was a blood clot in the womb, and, after removing that, advised the prosecutrix to go home and take a douche. After leaving defendant's office on that occasion, she went to another physician, who made an examination and advised her that she was pregnant. She returned to the defendant's office and told him what the other physician had said. The defendant thereupon told her that he would put something in the womb to hold it open, which he did.

On the 15th of February she went to the defendant's office again, this time accompanied by her mother. The two went into the defendant's private office, and he there made an examination of the prosecutrix and told her that her condition was caused by the tipping of the uterus, but that she need not worry, but to go home and see him the following Monday. Prosecutrix and her mother returned on the Monday, when he again examined her and advised her that she was coming down with a cold, and told her to go home and drink lemonade and that everything would be all right.

The mother of the prosecutrix testified that about the 15th of February she went to her daughter's home and saw that she was not feeling very well and accompanied her to the defendant's office. She told the defendant she did not think her daughter was getting along very well, and the doctor replied, "I took out everything that should come out and used a serum so there would be no danger of any infection." That on that occasion he placed the prosecutrix on the operating table, removed her clothing, and used an instrument of some kind in her vagina and that he put something in to hold it open and requested the daughter to return on Monday, the 17th, and that he would then take out what he had put in. The mother accompanied her daughter on that visit, and the defendant at that time told them that the daughter was getting along all right and not to be alarmed.

On cross-examination the mother stated that she did not know of any visits that her daughter made to defendant's office until the 15th of February, when her daughter advised her of what had occurred, that she understood the purpose of going to the doctor's office was for an operation that the doctor had performed for the purpose of procuring a miscarriage, and that on the occasion that she went to the defendant's office with the prosecutrix she saw the defendant pick up an instrument and manipulate it and saw him use it upon the body of the prosecutrix.

There was other testimony tending to show certain admissions made by the defendant. There was also the evidence of other physicians who had examined the prosecutrix subsequent to the first three or four visits which she had made to the defendant's office, which showed unquestionably that prosecutrix was pregnant, and, except for that condition, she was in perfect health and in normal physical condition.

R.S. Utah 1933, 105-32-14, provides:

"Upon a trial for procuring or attempting to procure an abortion, or aiding or assisting therein, or for inveigling, enticing or taking away any female of previously chaste character for the purpose of prostitution, or aiding or assisting therein, the defendant shall not be convicted upon the testimony of the woman upon or with whom the offense was committed, unless she is corroborated by other evidence."

We have no difficulty whatever in reaching the conclusion that the testimony of the prosecutrix was sufficiently corroborated.

II. The evidence shows that the prosecutrix requested the defendant to perform the operation, and that she voluntarily submitted herself to him for such unlawful purpose. By so doing, did she become an accomplice in the commission of the crime for which defendant is charged? The defendant requested the court to charge that she was an accomplice. The court declined to so charge but charged that she was not an accomplice. We think the court did not err in so charging. True it is that a defendant charged with the commission of an abortion may not be convicted of such an offense on the testimony of the woman upon whom the abortion is alleged to have been committed, unless her testimony in respect to the commission of the abortion is corroborated by other evidence. But that is so because of the statute above quoted. In the absence of any statutory provision, the defendant may be convicted on the uncorroborated testimony of the woman, as at common law. 1 R.C.L. 87, § 25. It does not follow that, because the woman's testimony must be corroborated by reason of such statute, she therefore stands in the relation of an accomplice to the defendant charged with the commission of the abortion. Although the testimony of the prosecutrix must be corroborated in order to convict, the reason for requiring the corroboration is predicated on an entirely different hypothesis from that falling within the rule relating to accomplice testimony. 1 C.J. 331 § 111, subd. 2.

R.S. Utah 1933, 103-2-1, provides:

"Every person who provides, supplies or administers to any pregnant woman, or procures any such woman to take, any medicine, drug or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the state prison not less than two nor more than ten years."

This statute was adopted by this state in 1876, and has been carried forward in every compilation and revision of our Code without amendment or modification, except that the words "state prison" have been substituted for the word "penitentiary." It is substantially declaratory of the common law in respect to abortion.

R.S. Utah 1933, 103-2-2, provides:

"Every woman who solicits any person, any medicine, drug or substance whatever, and takes the same, or who submits to any operation or to the use of any means whatever, with intent thereby to produce a miscarriage, unless the same is necessary to preserve her life, is punishable by imprisonment in the state prison not less than one nor more than five years."

This was first enacted and adopted by this state in the Revised Statutes of 1898, and creates a separate, distinct, and wholly statutory offense. Before the enactment of this statute, the woman's acts and conduct condemned by the statute were not regarded as criminal, and she was not subject to prosecution, although her moral delinquency was recognized by the courts in their instructions to juries. Obviously each of the two statutes above quoted defines a separate and distinct offense. It is quite clear that the woman spoken of in the statute is not regarded as one of the persons who could be guilty of the crime described in R.S. 1933, 103-2-1, supra, and that she could not be prosecuted therefor either as principal or as an accomplice. Says the court in People v. Vedder, 98 N.Y. 630 :

"We regard the proposition as too well settled by authority, and too salutary in practice to be now questioned."

The true test of an accomplice is stated in 16 C.J. 673, § 1315, as follows:

"One who could not be convicted of the crime with which the defendant is charged is not an accomplice no matter how culpable his conduct in connection therewith may be."

In this state we have no statutory definition of an accomplice, but R.S. 1933, 103-1-43, thus defines principles:

"All persons concerned in the commission of a crime, either felony or misdemeanor, whether they directly commit the act constituting the offense or aid and abet in its commission or, not being present, have advised and encouraged its commission. * * *"

In State v. Hilberg, 22 Utah 27, at page 39, 61 P. 215,218, this court lays down the test for accomplices as follows:

"Could she have been indicted for the offense charged, either as a principal or accessory,"

and in all of the authorities cited substantially similar definitions are applied. In Stone v. State, 118 Ga. 705,45 S.E. 630, 632, 98 Am. St. Rep. 145, it is said that one is only an accomplice

"when it is shown that he could have been tried as principal or accessory in the offense under investigation."

In State v. Jones, 115 Iowa 113, 88 N.W. 196, 198, citingBass v. State, 37 Ala. 469; Commonwealth v. Wood, 77 Mass. (11 Gray) 93, Dunn v. People, 29 N.Y. 523, 86 Am. Dec. 319, the test is laid down,

"Could he be indicted for the same offense for which the defendant was being tried?"

In State v. McCurtain, 52 Utah 63, at page 67, 172 P. 481,482, this court had before it this identical question, and there said:

"It is further contended that the prosecutrix is an accomplice and that the court should have so charged the jury. The contention is not tenable. It has often been held that the person on whom the criminal operation is performed although at her request or with her consent, is, nevertheless, not an accomplice. Such is the holding in the following cases.: People v.Vedder, 98 N.Y. 630; Dunn v. People, 29 N.Y. 523, 86 Am. Dec. 319; Watson v. State, 9 Tex. App. 237[9 Tex. Crim. 237]; Commonwealth v.Wood, 11 Gray 85; Commonwealth v. Follansbee,155 Mass. 274, 29 N.E. 471; 1 R.C.L., § 4, p. 71. While, no doubt, the female who requests or consents to a criminal operation with a view of producing an abortion is morally in fault, yet she is not guilty of the offense, and cannot be prosecuted under the statute. She there-is not an accomplice."

In State v. Carey, 76 Conn. 342, 56 A. 632, 635, the defendant was jointly charged with one Beebe on information for having performed a criminal operation on one Ida May Lafferty for the purpose of procuring an abortion. Beebe and Lafferty were witnesses for the state against the defendant. Defendant asked the court to instruct the jury that the woman, Ida May Lafferty, was an accomplice. The trial court charged the jury that she was not to be regarded as an accomplice. In passing on the question, the court said:

"The court did not err in saying that the witness Lafferty was not, strictly speaking, an accomplice of the accused in the perpetration of the crime charged against him. She could not be prosecuted and punished for that crime. There is nothing in the record that justifies the affirmation that she testified under the inducement of any promise, express or implied, of immunity from prosecution for the distinct crime she had committed. She is far from coming strictly within the meaning of ``accomplice' as used by Hale, Hawkins, Buller, Mansfield, and all the earlier judges in referring to the witness whose participation in the crime charged almost of necessity involved that turpitude and interest which destroyed his credibility. The theory of the defense is that the crime of the accused involved an operation on the body of the witness; that this operation could be more conveniently performed with her assent; that in giving assent she assisted him in the operation, and was therefore a joint perpetrator with him of the crime. The conclusion does not follow. Ordinarily, a man may injure his own body by his own hand or the hand of an agent, without himself violating the criminal law. And the person who injures his body with such assent may commit a crime of which the injured party is not guilty. A murderer cannot justify himself by proving the assent of his victim. Noninterference with a man's control of his person is not extended to the disposition of his life; but taking his own life is a thing distinct from the crime of murder. If a man in a moment of weakness should assent to the opening of a vein by another for the purpose of taking his life, and, when in the immediate expectation of death, make a statement of the facts attending the assault, it would hardly be claimed, upon trial of his assailant for felonious killing, that the dying declaration must be received with all the infirmities attending the testimony of an accomplice in the crime. This distinction between a man's injuring his own body himself, or through assent to such injury from another, and the crime that may be committed by another in inflicting such injury, has been strongly drawn in crimes akin to the one under discussion. At common law an operation on the body of a woman quick with child, with intent thereby to cause her miscarriage, was an indictable offense, but it was not an offense in her to so treat her own body, or to assent to such treatment from another; and the aid she might give to the offender in the physical performance of the operation did not make her an accomplice in his crime. The practical assistance she might thus give to the perpetrator did not involve her in the perpetration of his crime. It was in truth a crime which, in the nature of things, she could not commit. And so it has been held, under various statutory forms of this offense, that the victim of an attempted abortion could not be an accomplice in a crime which consisted in an operation on her body, with or without her consent, by another person, with intent to produce abortion.Commonwealth v. Wood, 11 Gray [Mass.] 85, 93; Commonwealth v. Boyton, 116 Mass. 343, 345; Commonwealth v. Follansbee,155 Mass. 274, 277, 29 N.E. 471; State v. Hyer,39 N.J. Law, 598."

The court continues:

"He [the defendant] is equally guilty whether the woman assent or does not assent to this use of her person, and any assistance he may have in performing the physical operation through her assent is not, in the meaning of the law, assistance from her in the perpetration of his crime, and does not make her an accomplice in that crime. This view is strengthened, rather than weakened, by the fact that the Legislature at the same time, for the purpose of further promoting the public policy which regards all unnecessary miscarriage as a public evil, created two new and distinct offenses, now contained in sections 1156 and 1157 of the General Statutes of 1902, one limiting the power of a woman over her own person, and punishing an attempt to produce unnecessary miscarriage, whether through the use of her own hands or those of an agent, and the other punishing every person who, by publication or otherwise, encourages the commission of either of the above-mentioned crimes. The offense created in thus limiting the power of a woman to injure her own person is in form, purpose, and punishment clearly distinct from that crime committed by another who inflicts an injury on her person in violation of law. The public policy which underlies this legislation is based largely on protection due to the woman — protection against her own weakness as well as the criminal lust and greed of others. The criminal intent and moral turpitudeinvolved in the violation by a woman of the restraint put uponher control over her own person is widely different from thatwhich attends the man who, in clear violation of law, and for payor gain of any kind, inflicts an injury on the body of a womanendangering health and perhaps life." (Italics added.)

The Supreme Court of Minnesota states the reason for the rule thus:

"As a first impression, it may seem to be an unsound rule that one who solicits the commission of an offense, and willingly submits to its being committed upon her own person, should not be deemed an accomplice, while those whom she has thus solicited should be deemed principal criminals in the transaction. But in cases of this kind the public welfare demands the application of this rule, and its exception from the general rule seems to be justified by the wisdom of experience." State v. Pearce,56 Minn. 226, 57 N.W. 652, 1065.

Various other states having almost identical statutes with Utah as to abortions, the punishment therefor, and corroborations of accomplices and defining who are principals, have sustained the proposition that a woman upon whom an abortion has been committed, even with her consent, is not an accomplice in the legal sense, whatever may be her moral turpitude. State v.Shaft, 166 N.C. 407, 81 S.E. 932, Ann. Cas. 1916C, 627;Gullatt v. State, 14 Ga. App. 53, 80 S.E. 340; State v.Stafford, 145 Iowa 285, 123 N.W. 167; Meno v. State, 117 Md. 435, 83 A. 759; Shaw v. State,73 Tex Cr. R. 337, 165 S.W. 930; Fondren v. State, 74 Tex. Crim. 552,169 S.W. 411; Gray v. State, 77 Tex.Crim. R.,178 S.W. 337; Regina v. Cramp, 14 Cox C.C. 390; State v.Smith, 99 Iowa 26, 68 N.W. 428, 61 Am. St. Rep. 219; Peoples v. Com., 87 Ky. 487, 9 S.W. 509, 810; Comm. v. Wood, 11 Gray 85; Comm. v. Boyton, 116 Mass. 343; Comm. v.Follansbee, 155 Mass. 274, 29 N.E. 471; State v. Owens,22 Minn. 238; State v. Hyer, 39 N.J.L. 598; Dunn v.People, 29 N.Y. 523, 86 Am. Dec. 319; People v. Vedder, supra; People v. McGonegal, 136 N.Y. 62, 32 N.E. 616; Comm. v. Bell, 4 Pa. Super. 187; Smartt v. State, 112 Tenn. 539,80 S.W. 586.

We feel that the decision in State v. McCurtain, supra, correctly stated the law, and that the principle of law there announced should not be departed from.

Inasmuch as the testimony of prosecutrix must be corroborated, the question of the character and extent of the corroboration becomes important. R.S. 1933, 105-32-14, supra, and R.S. 1933, 105-32-18, the latter section relating to corroboration of the testimony of an accomplice, were first enacted by the Legislature of this state in 1878 in its adoption of a code of criminal procedure. It would seem reasonable that the term "corroboration" as employed in both such sections should be given the same significance. R.S. 1933, 105-32-18 has been construed and applied a great many times by this court. State v. Laris, 78 Utah 183,2 P.2d 243; State v. Cox, 74 Utah 149, 277 P. 972;State v. Butterfield, 70 Utah 529, 261 P. 804; State v.Lay, 38 Utah 143, 110 P. 986; State v. Spencer, 15 Utah 149,49 P. 302. It has been uniformly held that the test of the sufficiency of the corroborating evidence is that it need not be sufficient in itself to sustain a conviction, but it must in and of itself tend to implicate and connect the accused with the commission of the crime charged, and not be consistent with his innocence. We are of the opinion that the court in applying R.S. 1933, 105-32-14, supra, should be controlled by the same rule.

In the present case, we find no such equivalent in the charge of the court nor did the defendant make such request. True, defendant in his request No. 33 as shown in the bill of exceptions included therein what might be deemed sufficient, but which was proposed along with other propositions which in the writer's opinion were objectionable and were very properly refused. Hence we have the rule that no error is committed in refusing a request for an instruction which is good in part and bad in part. Furthermore, in respect of "Request No. 33," the court's refusal to give the request was duly excepted to as shown in the transcript, yet the requested instruction appears nowhere in the defendant's abstract; and, in the assignments of error, the specification of error in reference thereto is as follows:

"XXXI. The court erred in refusing to give defendant's request No. 33 to which defendant excepted. (Tr. 85).

"Requested Instruction No. 33.

"The testimony of an accomplice should be weighed with great caution, and the jury may disbelieve such testimony altogether if they believe it to be untrue, the jury being the sole judges of credibility of the witnesses."

Being so assigned and being found nowhere in the abstract, and we are driven to search the bill of exceptions to find it, the writer, again expressing his personal views, says that the request is not before us for any purpose.

III. Defendant requested an instruction that the mother of the prosecutrix was an accomplice. The trial court properly refused this request.

IV. Serious consideration must be given the fourth question: Did the trial court err in admitting evidence to the effect that the defendant had committed an abortion on another woman prior to the offense for which he was being tried? This evidence was offered by the state for the purpose of showing the intent of the defendant in committing the act charged. Authorities on this question are by no means uniform. Some authorities hold that such evidence is relevant and competent for the purpose of showing intent, regardless of what the defense may be. Other authorities hold that such evidence is relevant and material only when the act done is claimed to be innocently or accidentally done, or by mistake, or when the result is claimed to have followed an act lawfully done for a legitimate purpose, or when there is room for such an inference. Then in rebuttal of such claim, and for the purpose of showing intent, other abortions attempted or performed may be shown. Other authorities admit evidence of other abortions attempted or performed on the same woman upon whom the offense is alleged to have been committed.

We will concern ourselves with the first and second propositions only. In Clark v. People, 224 Ill. 554,79 N.E. 941, five or six women testified that for several years preceding the time of the charged offense the plaintiff in error solicited patronage and held herself out as being able and willing to commit abortion or produce miscarriage by means of instruments and medicines. This evidence, of course, was in the nature of admissions, and the court held it was competent to show the declarations of one on trial for procuring abortion to the effect that she was in the habit of performing, or had solicited, such work.

In People v. Hagenow, 236, Ill. 514, 86 N.E. 370, evidence of other abortions was held admissible. In People v.Schultz-Knighten, 277 Ill. 238, 115 N.E. 140, the evidence of other abortions was admitted for the purpose of showing guilty knowledge. In People v. Hobbs, 297 Ill. 399, 130 N.E. 779, at page 783, the court says:

"* * * The specific intent or purpose to produce a criminal abortion must be proved before the guilt of the accused is established, and proof of performance of former similar criminal abortions on the same or another woman is admissible, under the authorities, to prove such specific intent. A defendant could not render this testimony incompetent by interposing a particular defense to the charge. People v. Hagenow, supra. In its case in chief the state must prove all of the elements of the crime, including the intent, and need not wait to learn the character of the defense that is to be made by the defendant. The plea of not guilty puts in issue all material allegations and any proper defense may be shown thereunder. * * * So it is not the law, as claimed and insisted by the plaintiff in error, that in order for such proof to be admissible it must further appear that the defendant admits the commission of the act but alleges that such act was necessary for the preservation of the life of the patient. Courts of other states hold to the same effect, and such proof is not confined to former convictions for abortion but may be made by parol evidence and where the defendant was never tried for such former offenses."

In State v. Newell, 134 Minn. 384, 159 N.W. 829, the court admitted evidence of other abortions by the accused for the purpose of showing a guilty or criminal intent in doing the act charged. In State v. Rowley, 197 Iowa 977, 195 N.W. 881, page 882, the court says:

"Over the objection of appellant the court admitted in evidence testimony tending to show that appellant had committed abortions upon other women than the one named in the indictment. Unquestionably, the general rule is that, upon the trial of a criminal case, evidence of the commission of other similar crimes by the defendant is inadmissible. The rule has been declared so frequently that citation of authorities is unnecessary to support it. There are, however, exceptions to this rule, and particularly so where a question of intent is involved. The statute under which appellant was indicted provides that the act must be done ``with intent' to produce the miscarriage of any woman. It also provides that the act is not criminal in the event such miscarriage shall be necessary to save the life of the person upon whom the operation is performed.

"In this case the appellant denied that she performed any operation whatever, and it is therefore urged that evidence of other similar crimes for the purpose of showing intent was inadmissible. The state, however, was compelled to establish, as part of its main case, not only the fact of the use of the instruments, but that they were used with the specific intent charged, and that it was not necessary so to do in order to save life. Notwithstanding the appellant's denial of evidence of having in any manner performed the act charged, the burden rested upon the state, not only to prove that the appellant used an instrument as charged, but that it was done with the intent to procure a miscarriage, and that such intent was an unlawful one, because of the fact that the operation was unnecessary to save life. The fact that appellant may have performed other similar acts closely connected in time with the act in question, and that such acts were performed with the intent to produce miscarriage, and that the same was not necessary to save life, would have a legitimate bearing upon the question of the intent of appellant in the instant case, if the jury believed the evidence of the state to the effect that the act was in fact performed."

We will now call attention to the leading authorities which hold that evidence of other distinct offenses is competent and relevant only when the act is admitted and justification for the act is claimed. In People v. Lonsdale, 122 Mich. 388,81 N.W. 277, 278, the court distinguishes People v. Seaman, 107 Mich. 348,65 N.W. 203, 61 Am. St. Rep. 326, and says:

"The prosecution introduced the testimony of a witness to show that she had applied to the respondent to have an abortion produced upon her. The testimony was very weak, and was evidently that of an unwilling witness. However, there was sufficient in it to show the purpose of the woman's visit, and that some acts were done towards the accomplishment of that purpose. The attorneys for the people justify this testimony on the ground that it tended to prove guilty knowledge or intent, and rely uponPeople v. Seaman, 107 Mich. 348, 65 N.W. 203 [61 Am. St. Rep. 326]. This case is not within the rule there announced, or within the authorities there cited. This case does not form an exception to the general rule of evidence. Where the intent or guilty knowledge is a necessary conclusion from the act done, proof of other offenses of a similar character is inadmissible, and violates the rule that the evidence must be confined to the issue. Upon the record, there is no room for an inference that death resulted from accident, or that the operation was performed to save the life or health of the deceased. On the contrary, if the jury found that the dying declaration of the deceased was true, the crime was complete, and the jury could not find otherwise than that it was done with guilty knowledge and intent. This testimony should have been excluded, and for this reason and conviction must be set aside."

In People v. Hodge, 141 Mich. 312, 104 N.W. 599, 113 Am. St. Rep. 525, the court says:

"It was the claim of the defendant that the operation, which he did not deny, was a necessary one, or, if not, that he believed it to be, and that he performed it without criminal intent. To show a criminal intent one May Lane was called by the prosecution, who testified that defendant performed a similar operation upon her for the avowed purpose of producing an abortion. It is said by counsel that this testimony was inadmissible, under the case of People v. Lonsdale,122 Mich. 392, 81 N.W. 277. The cases differ widely. In that case the criminal intent was a necessary conclusion from the act proved. Here it was not, as we have already seen. It depended on the truth or falsity of defendant's defense that the act was done for a legitimate purpose. See People v. Seaman, 107 Mich. 348,65 N.W. 203, 61 Am. St. Rep. 326."

In People v. Hickok, 56 Cal. App. 13, 204 P. 555, page 557, the court says:

"As a rule, upon the trial for a particular crime evidence which tends to show the commission of another and distinct offense by the defendant is inadmissible. To this rule there are, however, several exceptions. According to one line of authorities the state would have the right to introduce such testimony as a part of its case in chief in order to negative the possibility that the operation was necessitated by the condition of health of the patient. People v. Hagenow, 236 Ill. 514, 86 N.E. 370;People v. Northcott, 45 Cal. App. 706, 189 P. 704; People v. Sindici, 54 Cal. App. 193, 201 P. 975. In two California cases the Supreme Court, in denying petitions for their transfer to that court, withheld its approval of this doctrine; the exigencies of those cases not requiring its application. However, it is settled that such evidence is admissible whenever it appears that the defendant claims that the operation was innocently performed and for a lawful purpose. People v.King, 23 Cal. App. 259, 137 P. 1076."

In State v. Brown, 3 Boyce (Del.) 499 85 A. 797 the court held, where criminal intent need not be specifically proved or is necessarily established by proof of the commission of the act, evidence of the perpetration or attempted perpetration of similar offenses is inadmissible.

In Clark v. Commonwealth, 111 Ky. 443, 63 S.W. 740, at page 745, in passing upon the question whether evidence of other abortions than the one for which the defendant is being tried may be shown as evidence of the intent, the court says:

"It has been held, and such seems to be the settled law, that a physician may commit abortion upon a woman, when, in his opinion, it is necessary to do so to save her life; or another may commit the abortion under the advice of a physician that it is so necessary. And it has been held in some instances, in prosecutions for criminal abortions, that it is incumbent upon the commonwealth to show as a part of its case that the abortion was not necessary in order to save the life of the mother. It seems that this court has not recognized the rule last mentioned. People v. Commonwealth, 87 Ky. 489,9 S.W. 509, 810. If it was shown or admitted that the defendant had committed the abortion, but attempted to justify it upon the ground of necessity, it is clear that the evidence indicated above would have been competent to prove his motive and intent, and to rebut or negative the idea that he was acting upon his professional judgment, and under a necessity of saving the life of the mother. In the case at bar the purpose and effect of the evidence was not so much to show intent or motive, as it was to establish primarily the guilt of the accused as to having perpetrated the act of abortion. In the opinion of the majority of the court, the admission of this evidence was error, and it should have been rejected. We are of the further opinion, however, that it would have been competent, as above suggested, as affecting intent or motive, provided there had been proof or admission that defendant had committed the act resulting in the abortion, and undertook to justify that act under the plea of necessity."

"Acts of defendant tending to show his knowledge of the woman's pregnancy and his intention to commit an abortion upon her may be proved whether they were prior or subsequent to the particular act charged in the indictment; hence evidence of other operations performed by defendant before or after the operation charged is admissible for the purpose of showing the intent with which the act charged was done. But such evidence is competent only on the question of intent, and therefore is not admissible where the unlawful intent has been proved and the only question is whether defendant was connected with the crime, or where the question of intent is not involved." 1 C.J. p. 329, § 96.

In 1 R.C.L. p. 78, § 14, the rule is laid down as follows:

"Where the accused admits the performance of the operation but claims that it was a necessary one, or that he so believed, and that he performed it without criminal intent, it has been held that evidence that he had performed other criminal operations is admissible."

"Evidence of similar operations performed by defendant upon others is admissible, where defendant claims operation in question was innocently performed and for a lawful purpose." See 1 Nichols, Applied Evidence, § 19, p. 276.

In People v. Seaman, 107 Mich. 348, 65 N.W. 203, 61 Am. St. Rep. 326, evidence of other abortions committed by the defendant was admitted. The court, in a well-considered opinion, says at page 206 of 65 N.W., 107 Mich. 348:

"Upon principle and authority, it is clear that where a felonious intent is an essential ingredient of the crime charged, and the act done is claimed to have been innocently or accidentally done, or by mistake, or when the result is claimed to have followed an act lawfully done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts producing the same result as tending to show guilty knowledge, and the intent or purpose with which the particular act was done, and to rebut the presumption that might otherwise obtain."

The defendant would be guilty if he procured, or attempted to procure, a miscarriage upon the prosecutrix, unless the same was necessary to preserve her life. The state, under the plea of not guilty which the defendant entered was compelled to prove as part of its case, that the defendant in procuring the miscarriage was not doing so in an effort to save the life of the prosecutrix. In order to make that proof, the prosecutrix testified that her health was good at the time she went to the defendant's office. She detailed the purpose of her visit and the agreement she made with the defendant for the services that he was to render. Other physicians were called who also testified as to the condition of the prosecutrix at the time she was making the visits to the defendant's office. The criminal intent necessarily followed from the performance of the act.

No claim or intimation was made by the defendant that he had performed the operation or that it was necessary to save the life of the prosecutrix. Had he done so, then evidence of the commission, or attempted commission, of other abortions, would have been relevant and material. This court in State v.McCurtain, 52 Utah 63, 172 P. 481, held that evidence of other abortions was relevant and material when the defendant admitted the act but claimed that it was performed for the purpose of saving the life of the woman. We approve the rule laid down in that case. That case, however, is not in point with the proposition here involved. In the case at bar, no such claim was made. Had it been, then the McCurtain Case would have been controlling.

Where the state is able to prove, as it did in the case at bar, the commission of the act and that its performance was not necessary to save the life of the woman, then the criminal intent of the defendant has been shown, and evidence of other abortions on other and entirely different women is not relevant nor competent. If the defendant, although he had pleaded not guilty, claimed that the act was necessarily performed in an effort to save the life of the woman, then in rebuttal of such claim the state might well offer evidence of other abortions attempted or committed by the defendant for the purpose of disproving such claim and showing his intent in the performance of the acts for which he is being tried.

Cases may arise where the state would be unable to prove the intent of the defendant without proving the commission, or attempted commission, by him on other women of separate and distinct offenses. Should such a case arise, then, for the purpose of proving a criminal intent, the state should be permitted to introduce such evidence on its main case, although a plea of not guilty had been entered by the defendant; but, where the state, as was the case here, can prove the intent without relying upon separate and distinct offenses committed by the defendant, it should do so.

Evidence of the commission of separate and distinct offenses is an exception to the general rule, and its admission should be definitely limited to the cases in which it is relevant and material in order to safeguard the rights of a defendant. Jurors might often be inclined to convict a defendant, although he be innocent of the crime charged, were the state permitted to prove that he had committed other and distinct crimes than the one for which he was being tried. In limiting such evidence, as we have, we feel that we are protecting and safeguarding, not only the rights of the defendant, but the state as well.

It necessarily follows that the admission of this evidence was error, and that a new trial should be granted. The judgment of the court below is therefore reversed, and the case remanded for a new trial.