Earll v. People of State

• Citation: 1881 WL 10529,99 Ill. 123
• Parties: CHARLES EARLLv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Decision Date: 14 May 1881
• Court: Supreme Court of Illinois

99 Ill. 123

1881 WL 10529 (Ill.)

CHARLES EARLL

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Ottawa May 14, 1881.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. E. & A. VAN BUREN, for the plaintiff in error:

After an argument of some length to show that the verdict was against the evidence, counsel made the points that the court erred in allowing the State's attorney to read in evidence the case of Earll v. The People, 73 Ill. 329, and in allowing the State's attorney, in his closing address, to allude to the Rosette Jackson case, and to repeatedly denounce the defendant as the “red-handed murderer” of Rosette Jackson. Wharton's Crim. Ev. (8th ed.) secs. 29, 30; Yoe v. The People 49 Ill. 412; Wilson v. The People, 94 Id. 299; Fox v. The People, 95 Id. 71; Hatch v. State, 8 Tex. 417; Ferguson v. State, 49 Ind. 33; Fletcher v. State, Id. 124.

Mr. JAMES MCCARTNEY, Attorney General, for the People:

The State's attorney did not read the case of Earll v. The People in evidence, but read it only as a part of his argument to the jury. It seems to be an unsettled question how far a court may go in restraining a lawyer in the manner of his trial of a case. The jury being judges of the law, counsel have the right to read law to them on the argument.

Mr. LUTHER LAFLIN MILLS, State's Attorney of Cook county, also for the People.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

Plaintiff in error was tried in the Criminal Court of Cook county, at the November term, 1880, upon an indictment charging him with the murder of Etta Carl, in attempting to produce an abortion. The jury acquitted him of the charge of murder, but convicted him of an assault with intent to produce an abortion, and fixed the time of his confinement in the penitentiary at five years, and he was duly sentenced by the court, in pursuance of the verdict. Plaintiff in error asks a reversal of this sentence on several grounds, but mainly because it is not supported by the evidence. There is but little room for controversy as to what the actual facts are which are relied upon to sustain this conviction. The real difficulty consists in determining what conclusions may safely and fairly be drawn from them. The facts themselves are, briefly, as follows:

About two o'clock of the morning of the 25th of August, 1880, the dead body of Etta Carl was discovered by John G. Davis, a policeman, in the main hall on the second floor of the building known as the Davy block, on the north-west corner of Green and Madison streets, Chicago, where it had, a short time before, been placed by the accused. The accused was a practicing physician, and occupied room No. 10, on the same floor of the building in which the deceased was found. His room was divided into several apartments, in which he lodged, and also received and treated his patients, and was situated at the further end of a hall running due north from the head of the stairway, and crossing the hall at right angles, in which the deceased was laid, some thirty feet east of where the body was discovered.

Davis testifies, that on that morning, about the hour just mentioned, he and officer Derrick, another policeman, were standing on the sidewalk near the entrance of this building, and while there his attention was arrested by a stir on the second floor, that “seemed (as he expresses it) to be a sort of scuffling of feet,” whereupon he ascended the stairway, and on reaching the second floor discovered the accused at the end of the hall, in front of the door of his room, with a wet cloth in his hand, rubbing the floor; that upon observing witness the accused at once withdrew to his room, closing the door after him; that on discovering the body of the deceased he called to his companion, Derrick, and the two went immediately to the room of the accused, and knocked a number of times before obtaining any response; that after considerable knocking on the door and threatening to break it in, the accused asked witness, from within, if he was officer Davis, who lived in the building, and on being informed that he was, he replied he would open the door as soon as he was dressed. The door was soon opened and the rooms thoroughly searched, but nothing was discovered of any significance except a vaginal syringe, an intro-uterine syringe, and a lady's gold watch, which is admitted by the accused to have belonged to the deceased. Quite a variety of instruments were found, but they were all such as are necessary and usually kept by city physicians in regular practice. No person was found in the room other than the accused and his little son, Fred, who gave vent to his feelings in tears. The search of the room being concluded, the accused was taken by the witness in presence of the corpse, and upon perceiving it he ejaculated, “what is this,” or, “my God, what is this,” or something to that effect, in answer to which the witness remarked, “I guess you know what it is.” To which the accused replied that he had seen her before.

The deceased, when discovered, was lying across the hall, her feet pointing north, about two feet west of a gas-burner, a hat lying near her head, her left arm by her side, and her right hand across her breast, inside of which was a small bottle containing chloroform.

The officer also testifies to a conversation which he had with the accused on the following morning, which is substantially as follows: “At the station I took the doctor (accused) up to the captain's office, and questioned him in regard to this girl, Etta Carl. He said, some four or five weeks previous she came there to have an abortion performed on her; said that he had used his finger in some way; don't remember exactly, but he motioned with his two fingers, making her believe that he was performing an abortion; I think that she had visited him four or five times, and that on the afternoon of the 24th of August she called there about four o'clock, and after she came he said he was doing something with her; I think he said he was injecting water, using a syringe. I spoke to him about this bottle of chloroform, and if I remember right I think he said that he didn't see it until after he carried her into the hall. I asked why he carried the body into the hall. He said he didn't know hardly what to do, he was under such a state of excitement. First he had a notion to notify the police, then that he would carry the body into the hall. He said he believed it was more an insanity freak than anything else, of carrying the body into the hall.”

The testimony of Davis, as to what occurred at the office of the accused on the morning of the discovery of the body, is corroborated by officer Derrick. Outside of the medical testimony, which is based upon a post mortem examination, and the admissions of the accused, the foregoing are about all the important facts bearing on the case.

A post mortem examination, conducted by Dr. Bluthardt, county physician, in the presence of a number of physicians, some of whom were witnesses for the accused, was held on the same day, at the office of the accused, over the body of the deceased. Dr. Bluthardt testifies that the deceased was about 19 years of age, a little fleshy, and would weigh about 140 or 145 pounds; that when he first saw her she was lying on a table in Dr. Earll's office, with a two-ounce bottle in her hand, which contained about four drachms of chloroform, the bottle being corked; that he did not discover anything further than incipient inflammation of the organs, the abdomen,--that is, the covering of the bowels; that the peritoneum was somewhat adhering to the fundus or upper part of the uterus; * * * that he opened the uterus at the upper and interior surface, from the mouth to the fundus, and inside he found a fœtus about five months old; that the fœtus, with the membranes surrounding it, and the placenta adhering to the inner walls of the uterus, were perfect and intact; * * * that he found the neck and mouth of the uterus sufficiently dilated to admit his forefinger, and somewhat inflamed on its inner surface, and suppurating; that he found the heart natural, only it was filled with clotted blood, and gives it as his opinion that the deceased died from injection of water into the pregnant uterus.

On cross-examination, he states that he does not believe the sack which surrounds the fœtus could be ruptured by the use of a vaginal syringe, and that it is not regarded as dangerous to inject water into the vagina with such a syringe. He also admits that inflammation of the character discovered by him may be produced by certain kinds of work or exercise, such as the frequent use of a sewing machine, and that it often happens without any direct forcible injury to the affected parts, as in the case of inflammation caused by venereal disease; that such a shock as he supposes caused her death might have been produced by causes other than that of injecting water into the uterus, such as sudden fright, excessive joy or grief; that he did not know that deceased had any of the symptoms of such a shock.

It further appears, that this witness delivered to the coroner's jury a sworn statement, in which he gave the results of the post mortem, which differs materially in several important particulars from his present testimony. In that statement he attributes the death of the deceased to a different cause from that stated in his present testimony, but claims that the former statement, owing to the hurry in which it was prepared, did not truly express his opinion as to the cause of her death.

The accused also made a sworn statement before the coroner's jury, which was admitted in evidence on the trial, the substance of which is as follows: “I saw the dead body this morning in the hall of the building where I reside, and I placed the body there. I have seen the person alive whose dead body was found there. I saw the...