People v. Olmstead

• Decision Date: 27 October 1874
• Citation: 30 Mich. 431
• Court: Michigan Supreme Court
• Parties: The People v. Alexander Olmstead

30 Mich. 431

The People v. Alexander Olmstead

Supreme Court of Michigan

October 27, 1874

Heard October 15, 1874

Exceptions from Branch Circuit.

Isaac Marston, Attorney General, for the People.

N. P Loveridge and L. T. N. Wilson, for respondent.

OPINION

Campbell, J.:

The respondent was informed against for manslaughter in killing one Mary Bowers, whom it is averred he did "feloniously, willfully and wickedly kill and slay, contrary to the statute in such case made and provided," etc. The information does not name the offense, nor the manner or means of its commission.

Upon the trial the prosecution, in opening, stated that the prisoner was charged under § 7542 of the Compiled Laws, which is as follows:

"Every person who shall administer to any woman pregnant with a quick child any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be thereby produced, be deemed guilty of manslaughter."

The preceding section makes the malicious killing of an unborn quick child manslaughter, if done by an injury to the mother which would have constituted her murder if she had died.

The succeeding section makes all unnecessary attempts to produce the miscarriage of a pregnant woman, whatever may be the result, punishable as a misdemeanor.

The distinction, therefore, is clearly taken, as depending on the intent to destroy a living unborn child, and supplies a defect at the common law, whereby such attempts were not felonious, and in some cases, at least, may not have been punishable at all.

The elements of the crime, as applied to the case before us, are found in the death of the mother, produced by acts intended to destroy a quick child; that term being used in the statute as an unborn child liable to be killed by violence. The ambiguity which, according to Mr. Bishop, seems to exist in some statutes, as to the foetal condition, is not found in our statutes, which cover the whole ground by different provisions: Comp. L., §§ 7541, 7542, 7543; Bishop on Statutory Crimes, §§ 742-750, and cases.

The case was presented to the jury upon circumstantial evidence entirely, the cause of death being proved by medical testimony from a post mortem examination, and the connection of respondent with it being also inferential.

Upon the trial one Lucy Stone was sworn as a witness, who testified to having been sent for by respondent on the day before the deceased died, to wash her and change her clothes. She testified to certain appearances upon the bed and clothing, and to a peculiar offensive odor which she said she had never noticed before at any time or place, although she had noticed something like it. This testimony was objected to, but we think it was allowable as going to show, in some degree, the condition of the deceased, and as a circumstance which was not irrelevant, and which might possibly be material with other proofs.

But without proof of any minute examination of the person of the deceased, or any facts on which she based her opinion, or of any knowledge or experience which might enable her to form an opinion, this same witness was allowed to answer the following question: "Will you state what in your opinion was the matter with Mrs. Bowers at that time?" Her reply was: "My opinion was that she had lost a child."

It is impossible to find any reason for receiving such proof. It involved an opinion which no medical man could give without a very full examination. It also undertook to show more than a mere miscarriage.

No witness, medical or otherwise, can be allowed to give testimony from his observation concerning the nature of a person's illness or its causes, without proof both of a sufficient examination, and such knowledge or experience as will qualify him to offer an opinion. This woman may or may not have possessed such knowledge as would allow her to give an opinion upon some of the medical questions involved in her answer, but she gave no proofs of her knowledge, and gave no testimony upon which it could be inferred that her observation was such as would have justified any one in expressing an opinion. Whether it is within the power of medical science to determine from mere observation that there has been a miscarriage of a quick child, is a question we need not consider. It is certain that any competent physician would be very guarded in offering such an opinion. It is impossible to avoid the belief that the witness answered from her suspicions, and not from observation alone; and the question allowed to be put did not confine her to any such source of knowledge or inference. There is no occasion to review authorities upon so plain a case.

Objection was also made to the reception of testimony from Mrs. Belinda Wheeler as to what was claimed to have been a dying declaration. This witness swore she was alone in the room with deceased the day before her death. Her account is as follows: "She was lying with her eyes shut. She did not open her eyes, and I put my hand on her wrist to see if I could feel her pulse, and then she spoke and says: 'O, Aleck what have we done? I shall die.' I went away in a few minutes after that." And being further examined, she testified: "She did not open her eyes the last time I was there" [which was the time in question] "or say anything else. I did not say anything." This is the whole proof, except some cross-examination about witness' statements on other occasions, bearing upon the existence of delirium.

Dying declarations, as is well settled, are neither more nor less than statements of material facts concerning the cause and circumstances of homicide, made by the victim under the solemn belief of impending death, the effect of which on the mind is regarded as equivalent to the sanction of an oath. They are substitutes for sworn testimony, and must be such narrative statements as a witness might properly give on the stand if living: See People v. Knapp, 26 Mich. 112, and cases cited; also Hurd v. People, 25 Mich. 405.

The so-called declaration admitted here was entirely destitute of any feature of testimony in the proper sense of the term. There is nothing to indicate that it referred to the cause of death. It was not made for the purpose of explaining any act connected with the death. It formed no part of any conversation and was called out by no question or suggestion, and does not purport to be a narrative of anything. Neither is there anything to indicate that it was made for any purpose, or in view of any expectation of death, or that the deceased knew to whom she was speaking, or that she meant to speak to anybody. It is not even evident that she was awake or in her senses. The exclamation, if made in the manner described, is such a one as might naturally come from a person in agony, whose attention was completely distracted from the persons and things about her; and might easily have come from one quite unconscious of such matters.

It would be extremely dangerous, and contrary to every rule of evidence, to allow such an exclamation to be received as a dying declaration of facts, and to allow it to be eked out by suspicions and inferences, as was done here, so as to allow the jury to act upon it as if she had solemnly charged the respondent with being the author of her death, in the manner charged against him.

Two witnesses, Hattie Sweet and Belinda Wheeler, had been sworn for the prosecution, and evidence had been given by the defense to show that they had given different statements out of court upon material facts, and that one of them had testified differently on a former trial and examination. The court, against objection, allowed their credit to be supported by proof of general reputation for truth and veracity.

This we think was error. It is defended on the strength of certain intimations of Mr. Greenleaf (1 Greenl. Ev., § 469), and cases to which he refers. The origin of the doctrine, that the general good character of...