Biegun v. State

• Decision Date: 16 February 1950
• Docket Number: No. 16985,16985
• Citation: Biegun v. State, 206 Ga. 618, 58 S.E.2d 149 (Ga. 1950)
• Parties: BIEGUN v. STATE.
• Court: Georgia Supreme Court

Page 149

58 S.E.2d 149

206 Ga. 618

BIEGUN v. STATE.

No. 16985.

Supreme Court of Georgia.

Feb. 16, 1950.

Rehearing Denied March 15, 1950.

Syllabus by the Court.

1. On a trial for murder by reason of an alleged unlawful abortion upon a pregnant woman, evidence that, about 13 months prior to the date of the alleged offense for which the defendant was on trial, the defendant under similar circumstances performed an abortion upon another woman, was admissible for the purpose of showing plan, scheme, intent, and identity of parties in respect of the crime alleged against the defendant on trial.

2. On such trial, it was not error to admit in evidence a glass jar containing a foetus and the generative organs of the deceased female upon whom the alleged abortion was committed, which were obtained as the result of an autopsy, when it appeared that the foetus and parts of the human body were at the time of the trial in substantially the same condition as they were when removed from the body of the deceased woman.

3. The right of counsel for the defendant to cross-examine a witness for the State was not abridged by the court in refusing to allow irrelevant questions to be asked.

4. Where the court fully instructs the jury on the law applicable in circumstantial-evidence cases, it is not error to refuse a written request of the defendant to instruct the jury 'that the case on trial is a case of circumstantial evidence.'

5. It was not error for the court to refuse a written request to instruct the jury on the law relating to involuntary manslaughter in the commission of a lawful act without due caution and circumspection, such offense not being involved under either the evidence or the defendant's statement to the jury.

6. The assignments of error on the portion of the court's charge in which he used the word 'chemical,' and instructed the jury that they should first consider count 1 of the indictment in their deliberations, are without merit.

7. It not appearing from either the evidence or the defendant's statement that the woman whose death was alleged to have resulted from an abortion performed by the accused was pregnant with child within the meaning of Code, § 26-1101, it was not error for the court to fail to give in charge that section and § 26-1403, prescribing the punishment for assault with intent to murder.

8. The charge of the court on involuntary manslaughter in the commission of an unlawful act, of which complaint is made in ground No. 13, is not subject to the objections urged.

9. The charge relating to the testimony of an accomplice, and the necessity for corroboration of such testimony, correctly stated the law.

10. The evidence was sufficient to support a conviction of murder.

John H. Hudson, Atlanta, J. Walter LeCraw, Atlanta, Reuben A. Garland, Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., Atlanta, William Hall, Atlanta, Eugene Cook, Atty. Gen., J. R. Parham, Asst. Atty. Gen., for defendant in error.

ALMAND, Justice.

P. D. Biegun was convicted of murder upon an indictment returned by a grand jury of Fulton County. The first count of the indictment, on which count the conviction was had, charged that the accused 'on the 29th day of July, 1949, with force and arms, did unlawfully, with malice aforethought, kill and murder Dorothy Martin, a pregnant woman, by committing an abortion upon her person, and by introducing into her female organs a substance to the grand jurors unknown, and by inserting and packing said substance into the female organs of the said Dorothy Martin, and by using and employing an instrument and chemical and substance to the grand jurors unknown, upon the person of the said Dorothy Martin, thereby causing and inflicting injuries and wounds upon the person of the said Dorothy Martin from which she died.' The verdict recommended mercy, and the defendant was sentenced to life imprisonment. His motion for a new trial, based on the general grounds and 11 grounds added by amendment, was overruled, and he excepted.

1. Grounds 4, 5, and 6 of the motion for new trial will be considered together. It is complained that the court erred in allowing Virgil Echols, a witness for the State, to relate a separate and distinct transaction occurring in June, 1948, as to an abortion performed by the defendant on the wife of the witness. Echols was permitted by the court to testify that in June, 1948, he went to the defendant's home at Hapeville for the purpose of getting the latter to perform an abortion on his wife. The defendant agreed to perform for a consideration of $65, which the witness paid. Subsequently the witness carried his wife to the defendant's home, where he left her with the defendant, and shortly thereafter he returned and carried her to his home. After leaving the home of the defendant the witness' wife became nauseated and suffered pain, and the witness removed from her female organs about 60 feet of gauze and a rubber tube 6 inches long. His wife suffered such pain that he called a doctor, and she was removed to a hospital. The witness testified that her temperature was 104 degrees, and that penicillin and a blood transfusion were given her. While she was at the hospital the defendant visited her, and asked the witness why he had not called him when his wife started to have pain.

All of this testimony was objected to at the time it was offered, on the grounds that it was irrelevant and prejudicial, that it had no reasonable relation or relevance to the issue in the case, and that it was not shown to have been at any reasonable length of time in connection with the transaction then under investigation. Separate objections were made specifically to those parts of the testimony in which the witness related the giving of penicillin and a blood transfusion to his wife while she was in the hospital; the grounds of objection being substantially the ones stated above.

Though evidence of one crime is not admissible on the trial of a defendant from another crime where the sole purpose is to show that the defendant is guilty of such other crime, such evidence is admissible where there is some logical connection between the two transactions, from which it could be said that proof of the one tends to establish the other, or where evidence of similar transactions as to the nature of the crime committed and the methods employed shows a reasonable connection in point of time and place between the two, to show against the defendant on trial, plan, scheme, or identity of parties in respect of the crime. Cawthon v. State, 119 Ga. 395(5), 46 S.E. 897; Andrews v. State, 196 Ga. 84(4), 26 S.E.2d 263; Fuller v. State, 197 Ga. 714(1), 30 S.E.2d 608; Gossett v. State, 203 Ga. 692(3), 48 S.E.2d 71. 'If the method or scheme employed in the commission of the crimes of similar nature were the same, this aids in identification, and proof of other such crimes is admissible.' Allen v. State, 201 Ga. 391, 395, 40 S.E.2d 144, 147. In Dorsey v. State, 204 Ga. 345, 49 S.E.2d 886, where the defendant was on trial for rape, evidence of assault with intent to rape on other women was held to be admissible. It was there said 'The modus operandi here revealed is singular * * * Since the testimony of extraneous crimes objected to does in fact show a similarity of method employed by the defendant, and since it reveals a definite state of mind evidenced by a common plan or scheme for gratifying his lascivious desires, under the rulings of law above set forth we conclude that the evidence was admissible as an aid in identification, since that issue was also involved by the defendant's denial that he had ever seen any of the females who testified against him.' 204 Ga. at page 350, 49 S.E.2d at page 890.

In the case now under consideration, there is a definite similarity of the manner in which the defendants conducted their operations in the Chaffin case and in the one on trial. In both cases, (1) the woman went to the home of the defendant on reference of third parties; (2) the defendant agreed to perform an abortion for a cash consideration; (3) the women were carried to the same place; (4) the defendant carried the woman into a room, and no one was present when the abortion was performed other than the defendant and the woman; (5) the defendant packed the cervix or womb with gauze; and (6) severe pain followed each operation.

We think that, the offense being the same, to wit, acts to perform an abortion on a pregnant woman, and the manner and method in which these attempts were committed being similar, evidence of such other abortion was admissible under the precautionary instructions which the court gave, to show intent, motive, scheme, and identification of the defendant. Particularly it was relevant on the question of identification, for the reason that the defendant, shortly after the death of Dorothy Martin, in answer to questions propounded to him by a police officer, denied that an abortion had been attempted, and stated that he did not put his hands on her, but that she fainted. Guiffrida v. State, 61 Ga.App. 595, 7 S.E.2d 34.

Nor do we think that the prior similar transaction was so remote in point of time as to exclude this evidence from consideration by the jury. In Fuller v. State, 197 Ga. 714, 30 S.E.2d 608, supra, on a trial for murder growing out of a robbery, evidence of an indictment for robbery and a plea of guilty 16 months prior to the offense for which the defendant was on trial was held not to be inadmissible because too remote in time. In Gossett v. State, 203 Ga. 692, 48 S.E.2d 71, supra, on a trial for murder by poisoning, evidence of a prior death by poisoning by the defendant 10 months prior to the offense was deemed not too remote. In King v. Lovegrove, 3 K.B. 643, evidence as to a prior abortion which took place 9 months previously was held to be admissible; and in People v. Morani, 196 Cal. 154, 236 P. 135, on a trial for murder resulting from an abortion,...