State v. Anderson

• Decision Date: 23 February 1923
• Docket Number: No. 23842.,23842.
• Parties: STATE v. ANDERSON
• Court: Missouri Supreme Court

250 S.W. 68

298 Mo. 382

STATE v. ANDERSON

No. 23842.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Motion for Rehearing Overruled April 9, 1923.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

E. Anderson was convicted of manslaughter, and appeals. Affirmed.

Kelly, Buchholz, Kimbrell & O'Donnell, of Kansas City, for appellant.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.

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 an abortion upon her, in violation of section 3239, R. S. 1919.

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

On the 19th 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. Dr. Davis, the family physician was called and saw her on the 19th 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. On the same day he told her husband that she was 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 24th — five days later — and found her condition serious. At Dr. Davis' first call Mrs. Marts told him that if he would not relieve her, she would find some one who would; that she would rather die than go through childbirth again. When he returned on the 24th 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. Marta called upon Dr. Anderson on the afternoon a the 19th, after Dr. Davis' 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 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 20th of January when Mrs. Mart's called by telephone and asked to have Mrs. Blythe come to Mrs. Marts' 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 laoman 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 15 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 4 or 5 o'clock.' But what it was she didn't say."

This conversation occurred between 12 and 1 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 did not 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 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 15th, and found that she died of septic poisoning. He found the placenta or afterbirth in the uterus, and it was the decomposition of the placenta which caused the death, and this followed an abortion. This physician said that, while an afterbirth might remain for a good while after the birth of a child, it could hardly remain from the birth of the child in August; that she could not have become pregnant again with the placenta present. He testified from his examination at the autopsy that a miscarriage had been performed by means of an instrument; that the opening in the cervix was too large to have been made with a catheter.

Dr. Davis testified that his opinion on his examination January 24th was that she had been pregnant and an abortion had been performed.

The defendant testified on his own behalf that Mrs. Marts called to see him on the 19th of January and made an engagement with him to come to her home and make an examination on the 20th. She gave her name as Mrs. Crooks, told him that she was two months advanced in pregnancy, and told him about buying an instrument in a drug store which she had used without success for the purpose of producing an abortion. He treated her for the infection which ensued from the injuries, which, he inferred, had been inflicted by herself. He testified that all he did for her was proper treatment in such cases; he went to see her the next day. He said that he used no instrument that would be injurious. He said further that Mr. Marts tried to collect $500 from him, assaulted him, and choked him. He said at the time he first visited Mrs. Marts he used chloroform at her suggestion, and not because he thought it necessary.

Defendant further introduced testimony to show that he had a good reputation as a practicing physician and for truth and veracity and honesty. He also introduced evidence to show that the treatment of Mrs. Marts by the defendant, as described by the defendant, was the proper treatment.

Ida Bush, the colored girl, testified she was present at the time of the alleged operation, described the instruments which she saw, and said she boiled the water for sterilizing them, but she was sent out of the room. They told her she was too young and would not understand things.

Mrs. Stella Blythe, a witness for the state, corroborated the statements of her sister, Mrs. Wallace, mentioned above. She described the incidents very much the same as Mrs. Wallace had done.

Dr. Coffey testified for the state. He was present at the autopsy. He found that the woman had been pregnant and had had a miscarriage, and a large amount of afterbirth remained in the uterus, and she died of blood poisoning following the dissolution of the afterbirth. The cervix was dilated by some instrument, or stretched when the fœtus was expelled. Asked if the afterbirth which caused the death could have followed the birth of a child six months before, he said it was impossible, that a recent miscarriage caused the trouble, and a catheter would not dilate the cervix in the manner in which he found it.

On this evidence the jury found the defendant guilty, and assessed his punishment at a fine of $500.

I. The information was attacked by the motion in arrest, on the ground that it did not charge the homicidal act was done feloniously, and thereby failed to charge a crime. The information is as follows:

"Now comes Hunt C. Moore, prosecuting attorney for the state of Missouri, in and for the body of the county of Jackson, and upon his oath informs the court that Anderson, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 20th day of January, 1920, at the county of Jackson, state of Missouri, with force and arms in and upon one Margaret Ann Marts then and there willfully, unlawfully, and feloniously did make an assault, and did then and there willfully, unlawfully, and feloniously use and employ in and upon the body and womb of the said Margaret Ann Marts a certain instrument or instruments (the exact nature and description of which is to said prosecuting attorney unknown), and did then and there willfully and feloniously thrust and force said instrument or instruments into the private parts and womb of the said Margaret Ann. Marts, with the felonious intent then and there to promote and produce a miscarriage and abortion upon and to the person of the said Margaret Ann Marts; he, the said. E. Anderson, being then and there a licensed physician and then and there not intending necessary medical or surgical treatment, and not being then and there engaged in any act necessary to preserve the life of the said Margaret Ann Marts, or that of an unborn child, and not then and there intending any injury other than the destruction of pregnancy, did, by the means aforesaid, and in the manner aforesaid, mortally wound, infect, and disease the body and womb of the said Margaret Ann Marts in consequence of which she was made and became mortally sick,...