Clark v. People, 14314.
| Decision Date | 03 January 1939 |
| Docket Number | 14314. |
| Citation | 103 Colo. 371,86 P.2d 257 |
| Parties | CLARK v. PEOPLE |
| Court | Colorado Supreme Court |
Error to District Court, City and County of Denver; Henry S Lindsley, Judge.
J. W Clark was convicted of murder in the second degree, and he brings error, and applies for supersedeas.
Reversed.
Joel E. Stone, of Denver, for plaintiff in error.
Byron G. Rogers, Atty. Gen., and Reid Williams, Asst. Atty. Gen for the People.
The plaintiff in error, J. W. Clark, was convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for not less than ten years and not more than twelve years. He brings the case here for review.
Clark is a chiropractor. The district attorney charged, and undertook to prove, that the death of a young unmarried woman, Miss B. P., was due to an abortion claimed to have been performed by Clark on May 4, 1936, after she had become pregnant by a young unmarried man, J. J. M. It is uncontradicted that after becoming pregnant B. P. had herself taken several doses of a medicine supplied to her by J. J. M for the purpose of producing a miscarriage, as a result of which she had become very weak and ill. Clark admitted that she came to his office, but he denied performing an abortion, saying that on the contrary he advised her to reveal her condition to her mother, that he tried to dissuade the deceased from seeking an illegal operation, and had urged her to marry the young man instead.
One of the errors assigned in support of reversal is the admission of J. J. M.'s testimony that a week or two Before May 4, the date of the alleged operation, he had had a conversation with B. P. in which she told him 'she was pregnant and she was going to have an abortion performed by Dr. Clark.' Whatever the conversation was, it was held out of the defendant Clark's presence and hearing, and was prior to the time she first met Clark or talked to him, and long Before Clark learned of the case. This testimony could not be received under any recognized exception to the hearsay rule, an attempt to quality it as the declaration of a co-conspirator being obviously futile, there being no evidence in the record concerning the existence of any conspiracy which he could have joined at that time. Its admission constituted reversible error.
Error is also assigned on the admission of testimony given by Dr. Currigan. He testified that the deceased told him the day Before the alleged abortion she was determined to have the operation performed. Further: 'She said she thought she could have it done, and I asked if it was any of my business if I were to ask her who was going to do it. And she said 'Well, I am going to have it done; I don't see why I should say.' I said 'All right,' and she said 'Dr. Clark in the Empire Building. Dr. Clark, a chiropractor.'' Again, he testified that she made no statement as to the arrangement but that 'she was just going on through with it.' He also testified that six days later he called upon her at her home and 'She says, 'Well, I had that done and I have been pretty bad,'' no mention being made of the person who might have done it. Later he stated: 'As I remember, her statement [in the afternoon, at the hospital to which Dr. Currigan had her removed] was to the effect that she had asked Dr. Clark to do this work on her and that he had done it,' but that she did not tell him how much she paid. There is in evidence a typewritten document, purporting to be signed by B. P. at the hospital about May 12, 1936, to which due objection was made, and which will be later discussed. Dr. Currigan thereupon testified: 'She said 'I went to this man's office andthey gave me some other medicine,'' but he said she did not state where she went. 'She said: 'I went to their office * * *' that is what she said, she didn't mention any name.' (Inasmuch as Clark's co-defendant Carter who shared offices with him was acquitted by direction of the court, the testimony quoted takes on a dubious aspect.)
Dr. Currigan was asked on re-direct examination by the district attorney as follows: 'You testified that B. P.,--on cross-examination, that you curetted her--will you state to this court and jury whether or not in the performance of that curettement, whether you punctured the uterus in two places, of B. P.?' The answer was: 'I had no knowledge of such fact if I did.' A curette, as a surgical instrument, is defined by Webster's New International Dictionary (2d Ed., Unabridged) as 'a scoop, loop or ring (either blunt or sharp) for removing foreign bodies, growths, etc., from the walls of a cavity.' That an accidental puncturing of the walls of the uterus in the course of a uterine curettage might well have brought about the condition found by Dr. Thorsness, the coroner's physician, at the autopsy after B. P.'s death, without the defendant Clark's performing any operation whatever, is obvious on the record herein.
Such a possibility seems strengthened by the state of the evidence herein. Thus (1) there is not an iota of evidence that the defendant had in his possession or...
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