State v. DeGroat
| Decision Date | 23 June 1914 |
| Citation | 168 S.W. 702,259 Mo. 364 |
| Parties | STATE v. CHARLES B. DeGROAT, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. William M. Kinsey Judge.
Reversed and remanded.
George B. Webster and William J. Grodzki for appellant.
(1) The uncorroborated testimony of the prosecuting witness is so contradictory, so at variance with the physical facts and the laws of nature, and so in conflict with the other evidence in the case, as to render it insufficient to support a conviction upon a criminal charge. (2) The State wholly failed to prove that the alleged operation was not necessary to save the life of the prosecuting witness or an unborn child, and there was no evidence of her healthy condition from which the jury might draw that inference. In such circumstances there can no conviction. State v Sonner, 253 Mo. 440; State v. Shoemaker, 138 N.W. 381; State v. Wells, 100 P. 681; State v Longstreth, 121 N.W. 1114; State v. Brown, 85 A. 797; State v. Lee 37 A. 75; Howard v. People, 57 N.E. 441. (3) The fourth instruction was erroneous in that it omitted mention of essential elements of circumstantial evidence, which will justify conviction. State v. Salmon, 216 Mo. 529; State v. Gray, 163 Mo.App. 697; State v. Moxley, 102 Mo. 374.
John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
(1) At the close of the State's case the defendant's counsel interposed a demurrer to the evidence assigning several distinct grounds therefor. The first of these was that the State had not shown beyond a reasonable doubt that a miscarriage resulted from the treatment of Rose Ellis by this defendant. Under the statute this is not necessary. In fact, under it the woman need not even be pregnant. Sec. 4458, R. S. 1909; State v. Helton, 255 Mo. 170; State ex rel. v. Shields, 230 Mo. 91. Even if it were necessary however to establish the fact of a miscarriage in this particular case the same was abundantly established by the testimony. (2) The law would presume from the continued practice by the defendant of medicine for a period of almost twenty years that he had been duly licensed. In other words, the law presumes right action, and a wrongful act will not be presumed. Maysville v. Truex, 235 Mo. 619; Trust Co. v. Bank, 154 Mo.App. 89; State v. Bebhardt, 219 Mo. 708; State v. Schatt, 128 Mo.App. 625; Machinery Co. v. Ramlose, 210 Mo. 649. (3) The third reason assigned for the defendant's demurrer is that there was no proof that the abortion was not necessary to save the life of Rose Ellis or her unborn child. The testimony clearly shows that until this operation was performed on the prosecuting witness by the defendant her health was good. State v. Casto, 231 Mo. 408. (4) Defendant insisted that his demurrer should have been sustained because these was no proof that this operation had not been advised by some other physician to have been necessary to save the life of the prosecuting witness. This defense is not open to a physician when charged with performing the abortion himself. State v. Gow, 235 Mo. 324.
Appellant, convicted and fined $ 100 in the circuit court of the city of St. Louis upon the charge of abortion, appeals.
The facts are substantially thus: One Rose Ellis, a young married woman, 24 years old, residing in St. Louis, temporarily estranged and living apart from her husband, being pregnant and having been informed, as she says, by some girl friends, that the services of defendant could be enlisted for a consideration to rid her of the unborn child, went on the 17th day of June, 1912, on a street car unaccompanied to see defendant for this purpose. She found defendant, who is a physician, residing in St. Louis and for some twenty years engaged therein practicing his profession of medicine, at his office on South Ninth street in said city, and being asked by him what she wanted, informed him that she was some two and a half months advanced in pregnancy and wanted him to perform an operation, or as she expresses it, to "open her womb." This, in consideration of an agreed fee of five dollars, defendant agreed to do, and at once without further parley proceeded to do, pausing only to convince himself of the sufficiency of her heart action by auscultation, upon the prosecuting witness's telling him that her heart hurt her, and that it had always been "kind of weak."
The details of the methods employed by defendant are unimportant so far as the legal phases of this case are concerned. Suffice it to say that by the use of certain instruments which were inserted into the womb of the witness, Rose Ellis, a present small flow of blood was produced, which culminated some few days thereafter in a miscarriage. After the use upon the witness by the defendant of the instruments, she got up from the operating table, replaced her napkin, which she says she "had taken off before he went to work" on her, and rode alone to her aunt's home upon a street car.
Touching her prior health her testimony is, she "was feeling bad when she went down to the office" of the defendant, but she nowhere explains her condition or the nature of her ill feeling more at length, nor does it otherwise or elsewhere appear in the record, except that defendant says the witness was anaemic. Following the operation and while going on the street car to the home of her aunt with whom the witness was staying, she became ill and began to have severe hemorrhages, which illness and hemorrhages continued for some two months and until her condition became very serious if not dangerous. During this illness and these hemorrhages the miscarriage occurred. The fact of a miscarriage was sufficiently shown by another physician, Dr. Vanderbeck, who attended the prosecuting witness and treated her for hemorrhage and afterward gave testimony on the trial. Though this physician was not able to say what had caused such miscarriage, he was positive a miscarriage had happened.
The witness Rose Ellis was asked by the State on the trial, among others these questions:
Upon being confronted with the defendant after his arrest she at first denied any positive knowledge of him but afterwards admitted that she knew him and that he had treated her. This action she explained to the police officer by saying defendant had winked and shaken his head at her and she was afraid to admit that she recognized him.
Defendant offered proof of his good character, and in contradiction of the State's contention that he had operated upon the witness Rose Ellis so as to produce an abortion on her, denied that he did anything to the woman except to examine her and to use such methods, and prescribe for her use such remedies, as would tend to stop her hemorrhages. He claims in his testimony in his own behalf in the case, that he first saw her on the 13th day of June, 1912 -- she says her first visit to his office was on June 17. That she came to his office, told him she was sick and asked him to perform an operation on her, inferably from the context, for the purpose of producing a miscarriage. Defendant examined her on this occasion, visually only, it seems (though the record is cloudy, and other inferences may be drawn), found her to be, as he says, pale and apparently anaemic, and therefore refused to operate on her. He was afraid to "operate" on her -- afraid of her, he says. Thereupon and on his refusal, Mrs. Ellis told him she could operate on herself -- that she was in the habit of operating; that she had done so before. Defendant further says that the witness came back again to see him on the 16th of June; that he then examined her with the aid of a speculum and found her suffering from hemorrhage of the womb with decomposition indicated. He simply washed out the affected parts and prescribed certain remedies which have the effect of stopping hemorrhage. In other words, the defendant's position is that if an operation was performed on the witness by which a miscarriage was brought about, or if by any means such miscarriage was produced, he had no part therein. By broad inference his testimony indicates, without so saying in so many words, that she had herself used means to produce an abortion upon herself. Corroborative of this theory of defendant is the admission of the woman to Dr. Upshaw that she "had taken something."
At the close of the evidence for the prosecution the defendant interposed a demurrer thereto for insufficiency to sustain the charge in the information, which demurrer being overruled, he saved his exceptions.
Among other instructions the court gave of his own motion one upon the question of intent, and the manner of making proof thereof in this sort of case. Since defendant is very strenuously objecting to this instruction, and since we are therefore, among other matters, called on to notice it, we consider it pertinent to a full understanding of the case. It is numbered four and so designated in the briefs, and is as follows:
"You are further instructed that the intent with which an act is committed may be proved by direct and positive testimony, or such intent may be inferred from all the facts and circumstances surrounding and attending the act, as shown by the evidence in the case, and the intent with which the defendant used an instrument or instruments upon the private parts or womb of said Rose Ellis, if you find...
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