2 N.E.2d 839 (Ill. 1936), 23420, People v. Braune

Docket Nº:23420.
Citation:2 N.E.2d 839, 363 Ill. 551
Party Name:PEOPLE v. BRAUNE et al.
Case Date:June 10, 1936
Court:Supreme Court of Illinois

Page 839

2 N.E.2d 839 (Ill. 1936)

363 Ill. 551

PEOPLE

v.

BRAUNE et al.

No. 23420.

Supreme Court of Illinois

June 10, 1936

Grenville Beardsley, of Chicago, for plaintiff in error Frank R. braune.

Wm. Scott Stewart, of Chicago, for plaintiff in error Maurice L. Dale.

Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and A. B. Dennis, of Danville (Edward E. Wilson, John T. Gallagher, Richard H. Devine, Melvin Rembe, E. I. Harrington, Irwin B. Clorfene, and Benjamin Nelson, all of Chicago, of counsel), for the People.

[363 Ill. 552] JONES, Justice.

A writ of error was sued out of this court to the criminal court of Cook county to review a conviction of Frank R. Braune and Maurice L. Dale. The indictment against them contained five counts. A nolle prosequi was entered as to the last count. The other four counts charged the defendants committed a criminal abortion on Marie Dwyer, whereby they did kill and murder her. Both defendants were found guilty of manslaughter.

At the outset of the trial a serious error was committed, which substantially affected the rights of both defendants as well as the fairness of the trial. This error was one of law, and we will not make a greater recital of the evidence than is necessary for a proper decision of the case.

The defendants were physicians. Marie Dwyer was a patient of Dr. Dale and also kept company with him. She became pregnant, of which fact she and Dr. Dale became

Page 840

aware during January, 1935. On February 18 she and Dr. Dale went to the office of the defendant Dr. Braune, who made a physical examination of Miss Dwyer. She and Dr. Dale returned to Dr. Braune's office on February 21 and February 22. It is the contention of the people that the abortion was committed on the last-mentioned date by Dr. Braune, in the presence and by the procurement of Dr. Dale. During the operation Dr. Braune used forceps for the purpose of removing what he claimed was placental tissue. In doing so the forceps withdrew a loop of intestine or bowel. While holding it fast in the forceps he took scissors and clipped it. Both he and Dr. Dale discovered that the part clipped was intestine. The severed ends were hastily put together and the patient was sent to a hospital and a surgeon was called, who performed an operation to unite the ends of the intestine. The patient died a few days thereafter.

The defendants employed different counsel, and prior to the trial Dr. Braune filed a verified petition for a severance,[363 Ill. 553] in which he set forth in detail his version of all his conduct relating to the alleged crime. He represented that when he made his first examination of Miss Dwyer he found she had been in a pregnant condition about three months, and that from certain physical facts, which are mentioned, he concluded the probabilities were the foetus was dead; that he prepared the patient for later examination, and it was for that purpose she returned to his office on February 21; that his examination on this date further convinced him that the foetus was dead and that she was the victim of a 'missed abortion'; that he concluded it was necessary to anaesthetize the woman to ascertain what the actual condition was, and if the foetus was dead it would be necessary to remove the contents of the uterus to avoid serious consequences and risk of losing her life. The petition further set forth with great particularity the details of the operation on February 22, at which time an anaesthesia was administered. It stated that the reason for the emission of the intestine was that the uterus had become so boggy and impaired that it ruptured, admitting into it the intestine, and that the latter was severed before he was aware of the rupture. It was alleged that the general physical condition of Miss Dwyer was greatly depleted, due to a head injury she had previously received, and that she was totally incapacitated to accept any kind of employment. The petition charged that the diseased and impaired condition of her genital organs was due to efforts of Dr. Dale to abort her; that Dale will become a witness in his own behalf; and that their defenses will be directly and diametrically conflicting and antagonistic to each other and it would be impossible for him to secure a fair and impartial trial jointly with Dale. This petition was overruled by the court, and thereupon the defendant Dale filed a petition for a separate trial, and alleged he had heard the petition of Braune read in open court concerning the facts and circumstances surrounding the commission of the alleged abortion[363 Ill. 554] and that the same are prejudicial to him (Dale) and implicates him in the crime charged; that he is innocent thereof, and denies the truth of the admissions and statements made in Braune's petition which in any manner implicate Dale in the crime; and, furthermore, that he is informed that Braune will become a witness in his own behalf and that his testimony will be substantially the same as the statements set forth in his petition for a separate trial; that because they are codefendants he cannot cross-examine Braune as he would desire to do in view of their antagonistic defenses; and that he cannot obtain a fair and impartial trial if they are tried jointly. At the conclusion of the reading of this petition, an assistant state's attorney stated to the court that: 'The defense here seems to be according to these two counsel--each...

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