Clark v. Commonwealth

• Decision Date: 22 June 1901
• Parties: CLARK v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

63 S.W. 740

111 Ky. 443

CLARK v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

June 22, 1901

Appeal from circuit court, Webster county.

"To be officially reported."

W. E Clark was convicted of the offense of manslaughter, and he appeals. Reversed.

A. O Stanley, H. X. Morton, P. B. Miller, W. E. Bourland, and Stanley & Ruggles, for appellant.

L. C Flournoy, Lockett & Lockett, and R. J. Breckinridge, for the Commonwealth.

O'REAR J.

Appellant was indicted and tried for the murder of Cora Waller, alleged to have been committed on the 9th of September, 1900, in the town of Sturgis, Union county. He was convicted at the January term, 1901, of her manslaughter, and sentenced to 10 years' servitude in the state penitentiary.

It appears that Miss Waller was a young woman, aged about 26 or 28 years, of a highly-respected family, herself a bright, intelligent, and attractive woman, her family standing among the first of Union county. Thomas Holt, a young man from 30 to 35 years of age, who was formerly a deputy sheriff of his county (Union), also of a well-connected family, as is shown by the evidence, and who was an unmarried man, was her lover. On the occasion and date named he accompanied her from her home, near Morganfield, to Sturgis, a distance of some 12 miles, arriving after dark. The day was Sunday. Appellant, aged about 49 years, was a physician of about 25 years' practice. He also conducted a drug store at Sturgis, where he lived. At about 8 o'clock on the evening of the date named, a buggy, supposed to contain Holt and Miss Waller, was driven to appellant's front gate. Appellant was in his residence, and his wife and daughter and some lady friends were sitting on the veranda. Holt asked if Dr. Clark lived there, and, being informed that he did, asked for him to come out. As the doctor walked towards the gate, and about half of the distance, Holt asked if that was Dr. Clark. Answered in the affirmative, he stated, "I want to see you in your office." Clark told him that he would meet him there as soon as he could get a light. Procuring a lantern, he went to his office. The doctor, Holt, and Miss Waller then met at the doctor's office, which was some distance from appellant's residence, but on the same street. Within a few minutes thereafter, Miss Waller was dead. The doctor left the office to telephone to another physician, or for some purpose. One Skinner entered the office about this time, and found the young woman to be dead, and Holt in much agitation. Skinner went across the street, and telephoned friends of the young woman of her death, and notified his wife, and returned with her to the office. Within a few minutes, Holt shot himself through the breast, and expired without speaking again. Officers and others quickly gathered at the scene of the tragedy, where the two bodies were discovered,--the woman on the operating chair in the physician's office, dead; the young man on the floor near her, dead; appellant gone to consult an attorney. The young woman was lying upon her back at full length upon the operating chair, her feet not in the stirrups, but hanging down, her dress being in no wise misplaced, her hat yet hanging by the pins to her hair, her collar and some of the buttons of the front of her dress loosed. The justice of the peace, who was present, and held the inquest, ordered a post mortem examination to be made, which was done by the aid of three physicians, who were residents of the town of Sturgis. They proceeded directly with their investigation, which developed the following: The clothing of the young woman was discovered as above stated, with the exception that her drawers were down somewhat below the buttocks. A digital examination was made by each of the physicians, discovering in the opinion of some of them some foreign substance near the lip of the vagina, which was thought to be vaseline or other oily substance. The cervix of the womb was slightly dilated, and showed a red mark upon the outer edge. Further examination conducted by the aid of the speculum showed slight abrasions of the posterior wall of the cervix. It was then determined to remove the uterus, which was attempted to be done through the vagina by the aid of volsella forceps, a surgical instrument described as having sharp prongs to it, made something after the manner of elongated scissors, and which was used by taking hold of the neck of the womb; one of the prongs being inserted through the cervix, the other outside, and thus clutching it. The endeavor was made to draw it through the vagina, but, the ligaments and muscles holding the womb in place being too strong in resistance, and not having sufficient instruments to complete this attempt, it was abandoned. A Cæsarean operation was then performed, and the uterus removed. One of the attending physicians then took hold of the uterus in his hand. With an ordinary scalpel he cut it open, and there discovered a f tus, which was determined to be of about three months' growth; a clot of blood which had settled near the lower extremity of the womb, and near the inner os, the clot being about the size of a hen egg; one or more abrasions of the membrane of the uterus, which is described as being the decidua reflexa, which is described by the medical witnesses as a practically bloodless tissue or lining of the womb. There were one or more of these punctures, from one-eighth to one-quarter of an inch or more in length. There were no other evidences of violence or abrasions upon the body. The occurrences of that evening naturally threw the town into a state of intense excitement; so much so that when the constable and two citizens went in quest of appellant to arrest him, finding him coming from the residence of Judge Thompson, an attorney, and coming towards his home or his office, they thought it prudent to spirit him away to the county seat, some 12 miles distant, without allowing the crowd to know of his whereabouts. A change of venue was granted upon the application of appellant, and without objection from the commonwealth, and the case was sent to Webster county, where it was tried.

There was no living witness to the death of the young woman save appellant. There was no mark or wound upon her person that appears to have been necessarily fatal in itself, or even dangerous. It was the theory of the commonwealth that she died from shock, superinduced by an attempted criminal abortion perpetrated by appellant. It is of essential importance to the case of the prosecution that this theory be sustained, or the appellant must go acquitted. His presence profession, opportunity, and other circumstances that will be noticed hereafter, are all cited as evidence of his connection with the attempted abortion; for that an abortion had been attempted by some one at some time seems to be pretty thoroughly established, and not gravely questioned. That this attempt was the proximate cause of the young woman's death depended for its proof upon the ability of the commonwealth to sustain its theory that the wounds found upon the person of the young woman were sufficient in and of themselves to produce such a shock as would result in her death. To do this, resort was had to the testimony of the physicians who conducted the post mortem examination (no autopsy being held). Therefore the accuracy of their technical or scientific information as physicians, and the sources from which they obtained it, are of prime importance in testing the truth of the commonwealth's theory in this case. We cannot help but regard it strange that in such a case, involving the honor of a woman, and the life or liberty of a man, an autopsy was not held by these physicians. No vital organ of the woman was examined, neither her brain, heart, stomach, or other vital organ. No examination was made of the blood vessels to ascertain whether they showed that state of congestion of blood which, as we remember, all the medical witnesses agreed would have shown whether death was the result of shock. The testimony of the physicians who held this examination was to the effect that her death was caused by shock, superinduced by an attempt at abortion committed upon her person by some one using a sharp instrument by inserting it through the vagina into the womb. Upon the cross-examination of these witnesses, or some of them, the accuracy of their views, the extent of their experience, and the source of their learning--that is, the authors whom they had studied, or relied upon as the basis of their opinions, where they had not had personal experience in similar cases (and none of them had)--were attempted to be shown by elaborate cross-examination. Some of the witnesses would state the name of the author in their profession whose treatise sustained their opinion. And here is one of the principal questions presented by appellant upon this appeal. It was the theory of appellant in his defense that the decidua reflexa was atrophied at the period of this occurrence, and that the membrane which was shown to have been punctured was comparatively bloodless; that the whole of that membrane at that period did not have as much, or perhaps more, than a thimbleful of blood, and therefore not enough to have produced the clot found in the womb. It was further the theory of the defense that this clot was in every probability occasioned by the taking of some drug in the nature of ergot, which had produced enough of contraction by the womb to have ruptured some part of the placenta, which is described as that part of the membranous lining of the womb through which the blood of the mother is transmitted to the infant. This part of the womb was not shown by the testimony to have been abrased or punctured. It was the evident purpose of the prosecution to...