State v. Marini

Decision Date13 January 1934
Citation170 A. 110
CourtVermont Supreme Court
PartiesSTATE v. MARINI.

On Reargument Jan. 15, 1934.

Exceptions from Rutland County Court; Allen R. Sturtevant, Judge.

Joseph A. Marini was convicted of employing means with intent to procure the miscarriage of a pregnant woman, the same not being necessary to preserve her life, who died in consequence thereof, and he brings exceptions.

Exceptions overruled and execution of sentence ordered.

Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

Lawrence C. Jones, Atty. Gen., and Jack A. Crowley, State's Atty., of Rutland, for the State.

George M. Goddard, of Rutland, and Raymond Trainor, of White River Junction, for respondent;

THOMPSON, Justice.

The respondent was indicted under G. L. 7013, and convicted by a jury, of employing "means with intent to procure the miscarriage of Alberta Rowe, a pregnant woman, the same not being necessary to preserve her life, and who died in consequence thereof."

A few days after Miss Rowe died, Dr. C. F. Whitney, the state pathologist, performed an autopsy on her body, and made a report of what he found to the representatives of the state.

Before the jury was impaneled, the respondent made a motion asking the court to order the Attorney General and the state's attorney to furnish his counsel with a copy of Dr. Whitney's report. The motion was denied, and the respondent was allowed an exception. The respondent concedes that the motion was addressed to the discretion of the court, but he contends that the court abused its discretion in denying it. The report was not received in evidence, it was not made a part of the record, and, as it is not before us, we cannot say that the court abused its discretion.

While the first two witnesses called by the state were testifying, the respondent requested the court to order the state to prove that there had been an abortion before further testimony was received, on the ground that it was prejudicial and unfair to him to permit witnesses to testify before the corpus delicti was proved. The court, on being assured by the state that before it rested it would prove that an abortion had been performed, denied the request, and the respondent was allowed an exception.

The respondent concedes that the rule in this jurisdiction is that the order of trial in criminal cases is a matter of discretion with the trial court, subject only to the right of the accused to be afforded a fair opportunity to meet and answer the case made against him. State v. Magoon, 50 Vt. 333, 338; State v. Hopkins, 56 Vt. 250, 262; State v. Lawrence, 70 Vt. 524, 529, 41 A. 1027; State v. Pierce, 87 Vt. 144, 150, 88 A. 740. In State v. Magoon, the leading case in this jurisdiction, this court said: "In the trial of both civil and criminal causes, the order in which the testimony shall be admitted is one of practice rather than of strict right, and may, in the discretion of the court, be varied, to meet the exigencies of a given case, without error being predicable thereon, unless it is manifest that the variance has operated to surprise, or in some way work a legal disadvantage to, the excepting party."

The testimony of Dr. Whitney, who was the last witness but one called by the state, tended to prove the abortion. The respondent contends that, because the court permitted the state to withhold his testimony until that late period in its case, he was deprived of a fair and full opportunity to meet the evidence produced against him, in that his counsel did not have a reasonable opportunity to study and ascertain the meaning of the doctor's testimony, and so be properly prepared for his cross-examination and that of other witnesses who had testified. The respondent did not move for delay or time, at the close of the doctor's testimony, in which to properly prepare for his cross-examination, but immediately began the cross-examination, and he was examined fully and at considerable length. Under such circumstances, the respondent is not in a position to complain that his counsel were not properly prepared for the cross-examination. State v. Pierce, supra, 87 Vt page 151, 88 A. 740.

Before the direct examination of Dr. Whitney began, counsel for the respondent, referring to the witnesses who had testified for the state, said: "We understand these witnesses are going to remain in attendance, in court; we want to reserve the right to further cross-examination some of them when we are advised of the result of the autopsy. I presume they will stay here any way, won't they?" The state's attorney assured counsel that the witnesses for the state were all present it appears from the record that the respondent did not cross-examine any of the witnesses after the doctor had testified, and it does not appear that he desired to cross-examine any of them. It does not appear from the record that the respondent was deprived of a fair and full opportunity to meet the evidence produced against him. The exception is not sustained.

The respondent moved that the court direct a verdict in his favor at the close of the state's evidence. The motion was denied, and he excepted. This exception was waived by the respondent proceeding with the trial and introducing evidence. He renewed his motion for a directed verdict at the close of all the evidence. The motion was denied, and he excepted. There are four grounds stated in the motion, but the substance of them is contained in the fourth ground, that "there is no evidence in the case that shows or has a tendency to show that the respondent employed any means with intent to procure the miscarriage of Alberta Rowe, a pregnant woman, as charged in the indictment"

The respondent is an osteopathic physician. He lives in Rutland, and has an office in the Service building on Merchants' Row. Alberta Rowe was a woman thirty-three years old. She lived in Brandon and kept house for her father, Charles Rowe. A brother, Mark Rowe, lived in Brandon in his own home. Charles Rowe worked during the week in Rutland for Burditt Bros, and spent the weekend at his home in Brandon. Alberta had been keeping company with Harry Swan, who lived in Auburn, Me., for about a year prior to her death. She had visited in Auburn, and Swan had visited at her home in Brandon. His last visit prior to March, 1933, was during the Christmas season of 1932. At some time following that visit, Alberta learned that she was pregnant, and informed Swan of that fact by letter. He was responsible for her pregnancy. He left Auburn on March 30, 1933, traveling by automobile, and arrived at the Rowe home in Brandon in the morning of Friday, March 31. In the afternoon of that day, Swan and Alberta went to Rutland in his car. She went to the respondent's office alone and was there for some time. When she returned to the car, they went to Brandon, and stayed at the Rowe home. The next morning, Saturday, April 1, they went to Rutland again, arriving there about 11 o'clock. Alberta went to the respondent's office, and was there about an hour, when she returned to the car.

The respondent and his office assistant, Miss Jennie Cioffi, were the only witnesses who testified as to what took place in the respondent's office on those two occasions, except that Swan testified that Alberta told him that she was taking "light treatment"

It appears that the respondent used an appliance in his practice that is called a "light therapy lamp." It resembles a metal, oval cover with electric lamps in the top. When the lamps are turned on, their heat is thrown downward. It is also called a "baker." The respondent testified that it was used for applying heat to a person's body for the purpose of relieving colds, inflammation, to induce perspiration, and "soft tissue radiation." A treatment with the lamp is called "light treatment," and, when that expression is hereinafter used, it refers to treatment with the light therapy lamp.

The testimony of the respondent and Miss Cioffi tends to show that, when Miss Rowe called at his office in the afternoon of March 31, she gave her name as Mrs. Alberta Rowe of Brandon Inn, Vt, and her residence as state of Maine. She consulted with the respondent, and complained of having pains in her back and chest. After the consultation, she went to the examination and treatment room, where Miss Cioffi assisted her in baring her body just below the chest. The respondent then examined her chest and back with a stethoscope. He then directed Miss Cioffi to give her a light treatment, and to have her return the following morning at 10:30 and at 2:30 in the afternoon. Miss Cioffi and Miss Rowe then went into another room, where her body was bared to just below her hips. At that time Miss Cioffi noticed that Miss Rowe was wearing a sanitary belt with pad attached, and that she was menstruating. The therapy lamp was then applied to Miss Rowe's chest and back, the treatment taking about an hour. The respondent was not in the room during the treatment. Miss Rowe paid $5 for the consultation and treatment. The respondent was not in the office in the forenoon of April 1 while Miss Rowe was there, but Miss Cioffi gave her another light treatment for which she paid $3.

Swan testified that on April 1 Alberta returned to the car about noon, and told him that "Marini wanted to see me, have a talk with me;" that later in the afternoon he and Alberta went to the respondent's office, and, while there, the respondent had the following conversation with him: "He said he could get her out of this trouble, he said it would cost around $125, and I said I didn't have $125; he said 'you can get it can't you?' I said I don't know'; that is about all the conversation on that he and I had." He also testified that on that occasion the respondent told Alberta "to take a hot mustard bath Saturday night, and if the lights didn't do the job, do the trick, to come back Tuesday at five o'clock." Swan testified that Alberta did not have...

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