The State v. Finley
| Decision Date | 31 January 1906 |
| Citation | 91 S.W. 942,193 Mo. 202 |
| Parties | THE STATE v. FINLEY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pulaski Circuit Court. -- Hon. L. B. Woodside, Judge.
Affirmed.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) The information, which was properly verified, is sufficient in form and substance. It follows the language of the statute which describes the offense. R. S. 1899, sec. 1823. (2) The instructions fully and fairly presented the law to the jury and were favorable to defendant. But this court cannot consider them, as no objections were made and no exceptions were saved to the giving of instructions at the time. State v. Bayne, 88 Mo. 604; State v. Burk, 89 Mo. 635. (3) The alleged failure of the trial court to fully instruct upon all the law applicable to the case cannot be considered, because no exceptions were saved at the time to such alleged failure. State v. Albright, 144 Mo 638; State v. Cantlin, 118 Mo. 111. (4) Defendant's counsel failed to make any offer of proof where the State's objections were sustained. By this failure, the Supreme Court cannot investigate the relevance or pertinence of said evidence. State v. Martin, 124 Mo. 514; State v. Hodges, 144 Mo. 54. (5) All of the evidence was admitted without objections, except in two or three instances. In each one of these, defendant simply objected without giving the reasons for his objections. This is not a compliance with our law, which requires that specific reasons for the objections shall be given, and the trial court thereby informed before a ruling is made. State v. Young, 153 Mo. 449. (6) The statement of this case shows that the evidence was ample to justify the verdict of guilty, and the punishment assessed is light. On the subject of the sufficiency of the evidence, this court said: "If there is substantial evidence tending to show defendant's guilt, the sufficiency of the evidence to support the verdict will not be considered by the appellate court." State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. 8; State v. Williams, 186 Mo. 128. All of the courts hold that the acts and conduct of the defendant, and the circumstances attending the death of the woman, who has had an abortion procured, are of value in determining what connection defendant has had with the commission of the crime. Howard v. People, 185 Ill. 552. In a case where the evidence for the State was much weaker, and where there was no proof that defendant procured any medicine for deceased, a judgment of conviction was upheld. State v. Crews, 128 N.C. 581. The evidence was sufficient to show that defendant administered the medicine or drug to the deceased, according to the definition of the word "administer" as defined by all the courts. Burris v. State, 84 S.W. 723.
On the 12th day of August, 1904, there was filed in the office of the clerk of the circuit court of Pulaski county, by the prosecuting attorney of said county, an information charging the defendant Finley with manslaughter in the first degree, in the killing, at said county, of one Ella Green, by administering to her certain drugs or medicine for the purpose of destroying pregnancy. At the September term, 1904, of said circuit court, the defendant was put upon his trial, found guilty, and his punishment fixed at six years' imprisonment in the penitentiary. Defendant thereafter, in due time, filed motions for new trial and in arrest, both of which were overruled, to which ruling of the court he saved his exceptions, and brings the case to this court by appeal for review.
The State's evidence tended to show that Ella Green was an unmarried woman, twenty-three years of age, and lived with her brother and stepmother on a farm in said county. Defendant lived at the same place and raised a crop on the same farm the year preceding the death of Ella Green. For three or four days prior to her death Ella Green was complaining, and claimed to her stepmother and others that she had had the measles. Her stepmother was old, very feeble and totally blind, and did not suspect that anything of a different nature was wrong with deceased, as her brother, George, had just recovered from an attack of measles. On the 18th day of May, 1904, George Green and defendant were at work in the field, planting corn, when Mrs Davis called defendant to come to the house, saying that Ella wanted him. This was about nine o'clock. Defendant went to the house and did not return to the field until after twelve o'clock. Between twelve and one o'clock of the same day defendant was again called by Mrs. Davis, who stated that Ella wanted to see him again. He then went to the house and into the room where the sick girl lay in bed. In a few moments Jackson Davis and William Finley, the latter a brother of defendant, drove up in a wagon and also went into the sick room. William Finley soon left the room and went to the field to get a corn planter, and about the same time Jackson Davis left the room and went to see about his team. In a short time Davis returned and found the door to the girl's room locked and that defendant was still in the room with her. Davis then went to the field and assisted in bringing the corn planter to the yard. Returning to the house, he found the door to the sick room unlocked. On entering the room he discovered that the hearth was wet, although it was dry when he was formerly in the room. Defendant stated to Davis that Ella was getting worse. At two o'clock she died. Defendant then said that the girl was dead and that there would be no more talk; that she had had the measles and had flooded to death. No physician was called to see Ella Green, and although Mrs. Davis was in the room at the time she died, the defendant did not tell her that Ella was dead, nor did the old lady know it until some others came in and told her. Defendant started to wash and dress deceased, but one of the men present suggested that they had better get some of the neighbor women to do this, to which defendant objected, saying they would do it. Some women were sent for, and they came in the course of an hour or two. They said deceased had suffered from a miscarriage. The bed clothes were bloody, and a piece of oil cloth and two aprons were under the body. One woman testified that "everything around went to show that she had been confined;" another said that when she got there deceased was almost naked, and "was lying in a gore of blood." These witnesses discovered that the bed clothes were in a tub of water; that the water was red with blood and that there were two pieces of flesh in the tub. It was suggested that a postmortem examination be held, to which defendant objected, and kept on insisting that deceased died as a result of flooding. He wanted deceased's brother, George Green, to kick the coroner out of the house when he came. Defendant voluntarily said to Mrs. Salsman that evening that he could tell what killed Ella, and that "she had flooded to death on account of the measles." Some time prior to the death of deceased the defendant went to see Dr. Trice and told him that the widow Davis had sent him to get some medicine for Ella Green, and that Ella had become a little irregular in her monthly sickness. He also went to Dr. Reagan and told him practically the same thing, and he procured medicine from both physicians. In March, prior to the death of Ella Green, defendant went to a drugstore in Richland, and told a physician therein, Dr. Harmon, that Ella Green had missed her monthly, and wanted some medicine to make her regular. The druggist rather hesitated about furnishing this medicine, remarking that he would not have an abortion produced for a thousand dollars. On May 7th, following, defendant again visited the drugstore and told the druggist that the medicine he had gotten there did not do what she wanted, and that Ella Green requested him to get some more. The medicine was again furnished defendant, paid for and taken away by him. These prescriptions contained ergot, cotton root and buchu, and one bottle was found in her room after deceased's death. The physicians testified that the medicine thus obtained by defendant would produce an abortion. Dr. Oliver testified that he, as coroner, held the post-mortem examination over the body of deceased the day after her death, and found that she had miscarried, but discovered no signs of measles or other skin disease. He gave it as his opinion that she had advanced seven months in pregnancy. Four days after the death of deceased the defendant met one John Johnson and told him that he (defendant) was in hot water, and was being accused of killing Ella Green. About two weeks afterwards he again met Johnson, and said that they had not hung him (defendant) yet, but that if he had justice he would be hung. A few days before the death, defendant, in speaking of deceased, told Charles Briggs that she had measles, and was broken out all over, but that they would not hurt her. This witness went to the Davis home the day on which the death occurred, saw defendant washing his hands, and asked if Ella was dead, to which defendant replied that she was. When defendant and witness were alone in the room where the deceased lay in an almost nude condition, witness said to defendant, "I thought you told me Ella had the measles; there is no sign of measles here." Defendant replied, "They have been lying about her; she is not in the family way, is she?" To this witness replied, "No, not now." A few days before, the deceased said to witness, in the presence of defendant, that she had never had measles, but had been where people did have them, and never caught them. After she left, defendan...
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