250 S.W. 68 (Mo. 1923), State v. Anderson

Citation:250 S.W. 68, 298 Mo. 382
Opinion Judge:WHITE, J.
Party Name:THE STATE v. E. ANDERSON, Appellant
Attorney:Kelly, Buchholz, Kimbrell & O'Donnell for appellant. Jesse W. Barrett, Attorney General, and Henry Davis, Assistant Attorney-General, for respondent.
Case Date:April 09, 1923
Court:Supreme Court of Missouri
 
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250 S.W. 68 (Mo. 1923)

298 Mo. 382

THE STATE

v.

E. ANDERSON, Appellant

Supreme Court of Missouri, Second Division

April 9, 1923

Appeal from Jackson Circuit Court. -- Hon. E. E. Porterfield, Judge.

Affirmed.

Kelly, Buchholz, Kimbrell & O'Donnell for appellant.

(1) The indictment is fatally defective. State v. Herrell, 97 Mo. 105; State v. Gow, 235 Mo. 307. (2) The burden is on the State to prove the non-necessity of abortion to save the life of a mother or the life of an unborn child. There was not sufficient evidence to support the material allegations in the information on these essential points and defendant's motion for new trial should have been sustained. State v. DeGroat, 259 Mo. 364. (3) The court erred in giving instruction numbered 2. It was calculated to mislead and confuse the jury, and in fact the declarations of the court, when recopying the negative allegations in the information, were susceptible of the construction by the jury that the court intended to declare that the negative allegations were statements of incontrovertible and irrefutable truth and fact. State v. Steele, 226 Mo. 599. (4) It was error to admit the alleged dying declaration of deceased. State v. Colvin, 226 Mo. 446; State v. Kelleher, 224 Mo. 149; State v. Zorn, 202 Mo. 12.

Jesse W. Barrett, Attorney General, and Henry Davis, Assistant Attorney-General, for respondent.

(1) The information is in approved form. State v. Fitzporter, 93 Mo. 392; Sherwood's Com. on the Criminal Law of Mo., p. 63. An information which fails to allege that the wounding was done feloniously will nevertheless be held good if all the issues averred are so connected as to show the homicidal act was done feloniously. State v. Ferguson, 162 Mo. 672; State v. Birks, 199 Mo. 265, 271; State v. Taylor, 190 S.W. 332. (2) A prima-facie case of the non-necessity of producing an abortion in order to save the life of the child or the mother is made out by proof of the fact that the mother was in good health or in her usual and ordinary condition of health immediately prior to the commission upon her of the abortion charged. State v. De Groat, 259 Mo. 364, 380; 1 R. C. L. p. 78, sec. 14. (3) A declaration made in the belief of impending dissolution is admissible in evidence in all cases of homicide, and such a declaration made by a woman who has died as a result of a criminal operation is made so by statute. Sec. 4034, R. S. 1919; State v. Stewart, 178 Mo. 192. (a) Though the declarations of deceased were inadmissible at their first utterance, yet after having subsequently become conscious that she was dying if she re-affirmed them, they were then admissible as dying declarations. State v. Evans, 124 Mo. 397; State v. Garth, 164 Mo. 553, 563; State v. Thomas, 180 S.W. 886. (b) The admissibility of dying declarations is for the court to determine and not the jury. State v. Zorn, 202 Mo. 12; State v. Gow, 235 Mo. 307. (c) A part of the dying declarations consisted of opinions or conclusions of the declarant. They were not objected to and the error in their introduction into evidence is not available to the appellant in this court. (4) Instruction 2 is in approved form. It does not assume that the negatives of the statute had been proved. State v. Aitken, 240 Mo. 254, 263; State v. Bickel, 177 S.W. 310.

OPINION

[298 Mo. 385] WHITE, J.

The appellant, a practising physician in Kansas City, was tried before a jury in the Circuit Court of Jackson County, and on May 28, 1920, was found guilty of manslaughter in that he caused the death of Margaret Marts in attempting to produce

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an abortion [298 Mo. 386] upon her, in violation of Section 3239, Revised Statutes 1919.

Appellant assert that the evidence was insufficient to support a conviction, and we find it necessary to set it out at some length.

On the nineteenth day of August, 1919, Mrs. Marts gave birth to a child. Her recovery was good. The baby was fed from a bottle, and the mother's menstrual period returned in about a month. Those periods had stopped some six weeks before the time of the alleged offense, January 20, 1920. Doctor Davis, the family physician, was called and saw her on the nineteenth day of January, 1920, and made an examination because she told him that she had made some effort to produce an abortion by using a catheter upon herself. There was nothing out of normal in her condition except some irritation produced by her use of the catheter, and a slight enlargement of the womb which he decided to be caused by pregnancy. Her health was good and she needed no treatment except such as he administered in douches.

In order to ease the woman's mind he told her that she was not pregnant, and explained that he was attempting to get her mind away from her morbid purpose to produce a miscarriage. He was called again on the twenty-fourth -- five days later -- and found her condition serious. At Dr. Davis's first call Mrs. Marts told him that if he would not relieve her she would find someone who would; that she would rather die than go through childbirth again. When he returned on the twenty-fourth he found her in bed with an offensive odor and emitting blood and pus. He found from examination that some violence had been done to the womb, and infection had ensued. He treated her for the trouble; she was afterwards taken to the hospital, was brought home again, and died February 15, 1920.

It appears from the uncontradicted evidence that Mrs. Marts called upon Dr. Anderson on the afternoon of the nineteenth, after Dr. Davis's first visit. He made no examination of her, but made an engagement with her to call at her house the next day, about noon, and [298 Mo. 387] instructed her about preparations for what was termed an operation.

Mrs. Mattie Wallace testified that she was at the home of her sister, Mrs. Blythe, on the twentieth of January when Mrs. Marts called by telephone and asked to have Mrs. Blythe come to Mrs. Mart's house, stating that she was going to be chloroformed. Mrs. Blythe and Mrs. Wallace accordingly went to the home of Mrs. Marts. Dr. Anderson was there, also a colored woman by the name of Ida Bush. They found Mrs. Marts in bed; the defendant was in the kitchen fixing tools to operate on her. Dr. Anderson sent the colored woman out with a prescription for chloroform. Mrs. Blythe remained out of the room, because she was herself in a delicate condition, but Mrs. Wallace assisted in the administration of chloroform. The witness did not notice particularly what was done; she noticed that the doctor used two instruments, one of which appeared to be a speculum, and the other was about a foot long resembling scissors. The operation lasted about fifteen minutes. Dr. Anderson used water and used cotton, and as the doctor was leaving, the witness mentions this conversation:

"She asked him -- said, 'Now what time will this pass?' He says, 'That will be all right about four or five o'clock.' But what it was she didn't say."

This conversation occurred between twelve and one o'clock. Mrs. Marts then told Mrs. Blythe to call up Mr. Marts and tell him that she had been operated upon and was getting along all right. The witness further said that she did not know what the instruments were used for; she didn't know whether the physician was cutting her or just washing her out.

In a dying statement to which Mr. Marts testified, Mrs. Marts two or three days before her death told him she could live only a few days longer, she had given up all hope of recovery; that Dr. Anderson had lied to her and that she was going to die on account of it; he told her the operation would not be very severe and that she would be sick only three or four days; she was sorry she went over there. And at that time she told her husband [298 Mo. 388] what she wanted done in reference to taking care of her children.

Dr. J. S. Snider conducted an autopsy on the body of Mrs. Marts February fifteenth, and found that she died of septic poisoning. He found the placenta or after-birth in the uterus, and it was the decomposition of the placenta which caused...

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