State v. Edges

OPINION

By the Court,

Merrill, J.:

Defendant Elges, a duly licensed physician and surgeon of Reno, Nevada, following jury trial, was found and adjudged guilty of the crime of abortion by means of an instrument. From that judgment and from order denying new trial this appeal is taken.

The crime is defined by sec. 10129, N.C.L.1929, as follows: “Every person who, with intent thereby to produce the miscarriage of a woman, unless the same is necessary to preserve her life or that of the child whereof she is pregnant, shall — * * * Use, or cause to be used, any instrument or other means; Shall be guilty of abortion, * * *.”

One Golding, an alleged contact man for defendant Elges, was originally named as codefendant and such was his status throughout the trial. Upon submission of the state’s case, he changed his plea to guilty and was subsequently sentenced upon that plea. The court in instructing the jury charged it not to consider testimony as to conversations had by witnesses with Golding or evidence as to his actions.

No evidence was presented by defendant Elges, the case going to the jury upon the evidence presented by the state alone. Defendant’s first contention is that that evidence was insufficient to warrant a verdict of guilty and that the court erred in refusing his request for a directed verdict of acquittal. In this regard he asserts, first, that the state did not prove the use of an instrument and, second, that there was not sufficient corroboration under the requirement of sec. 10975, N.C.L.1929 that “the defendant shall not be convicted upon the testimony of the woman upon * * * whom the offense shall have been committed unless she is corroborated by other evidence.”

The woman upon whom the offense was committed, whom we shall call by her given name, Juanita, testified as follows: In May, 1950, she was residing in the bay area of California. She was married and had three children. Domestic difficulties had been encountered and she was contemplating a divorce. (By the time of trial the parties had been divorced.) She became pregnant and felt that under the circumstances she simply could not afford a fourth child. On May 17, 1950, she went with her husband to Daly City, California, where she met Golding. On May 19, 1950, she flew to Reno and called at defendant’s office. In the reception room were two other women who had flown to Reno on the same plane with her. When she was called she entered defendant’s office, paid him a fee of $350 and submitted to the operation at his hands. Just prior to the performing of the operation she saw an instrument in the hands of defendant, describing it as from 8 to 10 inches long, smaller around than an ordinary pencil and with a “sort of hook at the end.” During the operation she felt extreme pain in her abdomen. That night she returned to her home in California, after which she experienced hemorrhaging, general weakness and fainting spells, increasing in frequency. On May 26, 1950, she consulted her family physician, was hospitalized, and a curettement was performed.

In corroboration, the doctor who had performed the curettement testified. Prior to May 19, 1950, he had examined Juanita, finding her pregnant but otherwise in excellent health. There was no indication that continuing pregnancy or normal birth of a child would endanger her health. On May 26, 1950, he examined her, finding her an extremely sick person. She was hospitalized immediately and he performed a curettement, finding “that she had a marked amount of placental tissue in the uterus with remnants of the fetus remaining, the baby that had been partially dismembered”; that she had severe pelvic peritonitis secondary to an induced abortion brought about “by instrumentation in the uterus.” In answer to an inquiry whether in his opinion “she was aborted by the use of some foreign instrumentation being inserted in her uterus” he replied “Yes.”

Juanita’s husband testified to the trip to Daly City on May 17 and to meeting Golding at that time; to driving Juanita to the airport on May 19; to furnishing her with $350 for the operation. He further testified: after Juanita returned to her home “she was hemorrhaging and passing blood clots and couldn’t stand up and she was in pain a lot, and I got scared and called our family doctor and told him what had taken place and he said to get her to the South San Francisco hospital right away and he would meet us there.”

One of the two women seen by Juanita in defendant’s reception room testified corroborating Juanita’s presence in defendant’s office on May 19, 1950.

Nothing can be clearer, in our view, than that Juanita’s testimony was amply corroborated within the requirements of our statute; that the corroboration tended to connect the defendant with the offense; that the testimony of Juanita and of the doctor supplied evidence of instrumentation; that the court was not in error in refusing to direct a verdict for the defendant.

The state did not choose to stand upon the testimony outlined, however. It proceeded to present testimony of six other women (one of whom was the witness present in the reception room with Juanita), all of whom testified to having made the Daly City contact with Golding and the trip to Reno and to receiving an abortion operation at the hands of defendant. With reference to this testimony the court instructed the jury as follows :

“Such evidence was received for a limited purpose only; not to prove distinct offenses or continual criminality, but for such bearing, if any, as it might have on the question whether the defendant is innocent or guilty of the crime charged against him. in the indictment. You are not permitted to consider that evidence for any other purpose, * * *. The value, if any, of such evidence depends on whether or not it tends to show that the defendant entertained the intent which is a necessary element of the alleged crime for which he is now on trial * * *.” State v. Vertrees, 33 Nev. 509, 112 P. 42.

Defendant contends that, notwithstanding the court’s instruction, this testimony was improperly admitted and was highly prejudicial; that its admission accordingly was reversible error.

The question of the admissibility of such testimony in such a case as this has frequently had the consideration of the courts. Generally it may be stated that in cases of abortion the courts are in substantial agreement that evidence of other offenses is competent and relevant upon the issue of the defendant’s intent in committing the acts charged where such intent is an issue in the case. See: Ann. 15 A.L.R.2d 1080. There is division in the authorities, however, as to just when such intent is so placed in issue as to become a proper subject of proof by evidence of such a character. See: Ann., supra, 15 A.L.R.2d, p. 1089. One line of authority holds that since criminal intent in every case is an essential ingredient of criminal abortion (especially under a statute such as ours), the state has an affirmative duty to prove such an intent; that evidence of other offenses may, therefore, be introduced as such proof upon the state’s case in chief. See: Ann., supra, p. 1091. Another line of authority (to which a major portion of appellant’s brief is devoted and exemplified by State v. Willson, 113 Ore. 450, 230 P. 810, 233 P. 259, 39 A.L.R. 88 and State v. Cragun, 85 Utah 149, 38 P.2d 1071), holds that such evidence is inadmissible unless and until absence of criminal intent is affirmatively asserted by the defendant. See: Ann., supra, p. 1089.

Defendant also points out that in no instance was it shown that the other abortion operations were not necessary to preservation of life. He contends that such evidence could not, in any event, therefore, bear upon the question of criminal intent since such intent was not established as to such operations.

In our view, however, the question of inadmissibility of this evidence upon any of the grounds asserted by defendant need not be decided in this case. In any event we should be compelled to hold that its admission was not prejudicial under sec. 11266, N.C.L.1929. That section provides: “No judgment shall be set aside, or new trial granted, in any case on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter or pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case, it shall appear that the error complained of has resulted in a miscarriage of justice, or has actually prejudiced the defendant, in respect to a substantial right.”

Since the evidence of the offense with which defendant was charged went to the jury without contradiction or explanation by the defendant, there was no issue in the evidence upon which the testimony of other offenses might have swayed the jury. Nor, as we have discussed, was there any deficiency in proof of the offense charged. Further it is to be noted that there is no indication that the testimony of Juanita or of her corroborators for any reason was unworthy of belief by the jury. Not only does it remain uncontradicted. In no respect was it impeached; nor was it shaken by cross-examination. Yet, in effect what we are asked to conclude is that had it not been for the testimony relating to other offenses the jury might well have disbelieved every witness as to the offense charged. Not that it might have believed witnesses to the contrary effect, but might simply have disbelieved the undisputed testimony of the state’s witnesses for no apparent or asserted reason at all. We find ourselves wholly unable to accept such a proposition.

A similar contention was made in People v. Busby, 40 Cal.App.2d 193, 104 P.2d 531, 535, where the defendant had been indicted for child stealing and abduction and the child was the principal witness against him. Hearsay testimony was improperly admitted. The defendant contended that the testimony of the child might not have been believed by the jury had it not been for the fact that the inadmissible evidence reflected unfavorably upon his character. The court, relying upon a constitutional provision similar to our sec. 11266, stated: “In a close case there.is little doubt that the admission of this evidence might be held to be reversible error, but in the instant case the evidence * * * is so uncontradicted and so overwhelming that if appellant had been pictured by the evidence as a paragon of virtue, the jury could have reached no other verdict. The admission of this evidence has not resulted in any miscarriage of justice and was not reversible error. * * *”

In People v. Dial, 28 Cal.App. 704, 153 P. 970, 972, the court agreed with the defendant that evidence of other offenses should not have been admitted. It held, however, that the error was not .prejudicial, stating, “The accusation against defendant is established by the testimony of two witnesses who testify directly to the commission of the acts charged in the information. The record fails to show that these witnesses were impeached or contradicted in any particular. No evidence was offered by the defendant, except the testimony of one witness which was confined to one of these earlier transactions. The evidence left no room for doubt in the minds of the jurors. They were bound to find the defendant guilty and could not have done otherwise without violation of their oaths.”

In State v. Skaug, 63 Nev. 59, 66, 161 P.2d 708, 711, 163 P.2d 130, it was stated by this court: “* * * in the presence of such enormous and clearly proven guilt we will not pause to speculate as to whether, if evidence of other offenses had been omitted the jury might have returned a verdict carrying a lesser penalty. Section 11266 N.C.L. prevents a reversal.”

This same principle has been applied in abortion cases. In People v. Northcott, 45 Cal.App. 706, 189 P. 704, 710, the Supreme Court of California under the constitutional provision to which we have referred, refused to review a decision of the district court of appeals as to the admissibility of testimony concerning other abortion operations performed by the defendant. The court’s refusal was based upon language of the court of appeals that the “record * * * leaves no doubt of the guilt of the defendant.” To the same effect is Thacker v. State, 55 Okla.Crim.App. 161, 26 P.2d 770.

If, then, upon completion of the state’s case, excepting the testimony as to other abortion operations, “the nature and conclusiveness of the evidence” as to the offense charged were such that the jury could not in good conscience have found otherwise than that he was guilty (and we are satisfied that such is the case), the only logical conclusion is that the error, if any, was not prejudicial. State v. Skaug, supra.

State v. McKay, 63 Nev. 180, 187, 188, 165 P.2d 389, 167 P.2d 476, 479, dealt with the asserted error of requiring the defendant under charge of first-degree murder to appear before the jury throughout the trial in handcuffs. The defendant there contended that the sufficiency of the evidence “could not logically negative the idea that prejudice may have influenced the jurors, since there is no conceivable yardstick in the law to judge the degree of prejudice in the minds of the jurors.” This court, speaking through Mr. Justice Horsey, rejected this contention, refusing to recognize in the defendant any “fanciful right to play upon the sympathy or credulity of the-jurors, and * * * to endeavor to have them depart from their sworn duty, and thereby defeat justice, and of which the handcuffing may have rendered him less capable, * * The opinion states, “The jurors having done no more than their sworn duty, it cannot be presumed in favor of appellant that if appellant had been free from handcuffs, they would have done less than their duty. * * * The appellant, of course, had no right to have justice miscarry in his favor. No person has that right.” That language, we feel, precisely expresses our position in the instant case.

Judgment and order are affirmed.

Badt, C. J., concurs.