Cobianchi v. People, 15220.
| Decision Date | 03 August 1943 |
| Docket Number | 15220. |
| Citation | 141 P.2d 688,111 Colo. 298 |
| Parties | COBIANCHI v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied Oct. 4, 1943.
Error to District Court, City and County of Denver; Joseph J Walsh, Judge.
Philip L. Cobianchi was convicted of second-degree murder, and he brings error.
Reversed.
Alter & Upton, of Denver, for plaintiff in error.
Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen and James S. Henderson, Asst. Atty. Gen., for defendant in error.
Defendant was charged with murder by abortion, convicted of second degree murder, and sentenced to a term in the penitentiary. To reverse the judgment he prosecutes a writ of error.
Defendant introduced no testimony. At the close of the people's case, he moved for a directed verdict on the ground that the evidence was not sufficient to support a conviction. The court denied the motion. The assignments of error are directed to: 1, Refusal by the trial court of instructions tendered by defendant and giving of instructions over defendant's objection; 2, Refusal to strike certain allegedly incompetent and irrelevant testimony; and 3, Denial of defendant's motion for a directed verdict.
In the view we take, it is unnecessary to consider the first and second groups of assigned errors, and we therefore express no opinion as to their merits or demerits. We consider only the error assigned on the court's denial of the motion for a directed verdict. This raises the issue of whether a prima facie case of defendant's guilt was established by competent evidence. The evidence is wholly circumstantial. The circumstances relied upon are as follows:
On October 1, 1941, the deceased, Geraldine, suspecting that she was pregnant because she had missed two menstrual periods, called on Dr. Holt and requested an examination. He gave her a bottle, with directions to procure and bring to him the next day a sample of her urine. She returned as directed, and presented what Dr. Holt assumed was a sample of her urine, though he had no knowledge of that fact. This sample Dr. Holt delivered to Miss Spraley, a laboratory technician employed by Dr. Halley, to make the Friedman modification of the Zondek-Ascheim test. This is done properly by injecting a quantity of the urine of the woman suspected of pregnancy into the blood stream of a virgin female rabbit that has been kept away from proximity to a male rabbit, and which is from four months to seventeen weeks old and weighs about four pounds. Forty-eight hours after such injection the rabbit is killed and its ovaries examined. If the woman is pregnant, certain changes in the appearance of the rabbit's ovaries ordinarily occur, discernible to one skilled in making such tests. If the woman is not pregnant, ordinarily no change is produced in the appearance of the ovaries. This test was made, and Dr. Halley's report was that the result was positive.
According to the medical testimony, the test is not absolute, but in ninety per cent of the cases it proves to be correct. Dr. Holt could not state definitely that the sample of urine presented to him was that of Geraldine, nor did any other witness so testify. His testimony was that she presented it to him as such. Neither Dr. Halley nor his technician was able to state positively, nor did any other witness testify, that the rabbit used for the test was of the age or weight required, that it was a virgin rabbit, and if so, that it had not been in proximity to a male rabbit. It was admitted that if the rabbit was not a virgin, or if so, and it had been in proximity to a male, that its ovaries would have the appearance noted and that the test would be positive, even if deceased was not pregnant. It was further admitted that if deceased had a certain kind of tumor the test would be positive even though pregnancy did not exist, and that many other physical conditions of the woman might destroy its accuracy as a test. There was no testimony that deceased was not afflicted with such a tumor, nor testimony excluding any other possible conditions that might make the test inaccurate.
Dr. Dwyer testified that he examined Geraldine at St. Luke's Hospital on October 21, 1941, at which time she stated to him that she had attempted an abortion on Saturday, October eleventh, and that a doctor, whose name she did not state, had curetted her on the following Sunday, October twelfth. The medical testimony was to the effect that curettement is the proper proceeding following an abortion. Dr. Dwyer's examination disclosed a pelvic abscess that might be caused by an abortion, but from an examination of the organs of deceased he discovered nothing to indicate that pregnancy had existed or that an abortion had been performed. He stated that if Geraldine had been pregnant, he would have gotten some sort of placenta tissue, and this he did not find. Dr. Dwyer's testimony was to the further effect that he did not know the cause of the pelvic abscess; that an abortion could cause one, but that it could result from many other causes and that it was not peculiar to a female, but might be found also in a male.
Deceased remained in St. Luke's Hospital three weeks under Dr. Dwyer's care, returned to her apartment where she remained for two weeks, and then entered St. Joseph's Hospital where Dr. Dwyer operated on her for acute appendicitis. This, according to the medical testimony, might have resulted from the abortion, or abscess, or from many other causes, and the septicaemia which caused her death a few days after the operation could have been a post-operative result of the operation for acute appendicitis. In the death certificate, Dr. Dwyer stated that death was from septicaemia 'due to instrumentation to perform an abortion, or something like that.' Due to the fact that Geraldine stated she had had an abortion, and not to anything he found from his examination, Dr. Dwyer so reported the cause of death. For the same reason he caused the district attorney to be notified, and two investigators from that office interviewed Geraldine, but no action, so far as the record discloses, was predicated on their investigation, and neither of them was a witness in the case.
The autopsy performed by Dr. Maynard, pathologist for the City and County of Denver, revealed an acute inflammation of the uterus and ovaries, and that death was caused by generalized peritonitis. It disclosed no evidence of pregnancy or of an abortion.
Jack Fixler, a witness for the people, testified that Geraldine was his fiancee; that she lived in the Glenaire Apartments at 1431 Glenarm Place, Denver; that he knew Dr. Cobianchi, defendant; that the first time he talked to him was in the place where he worked, and the second time he talked to him was at the Glenaire Apartments where Geraldine was sick in bed. On the latter occasion he talked to her in the presence of defendant at which time he says she told about her condition, but he does not state what that condition was, other than that she was sick at that time. He testified that defendant told him not to worry, that Geraldine would be well taken care of, and that everything would be all right. Witness says he asked for a different doctor and found Dr. Dwyer, who took her to St. Luke's Hospital, as hereinBefore stated. The witness also testified that after Geraldine returned to her apartment from St. Luke's Hospital, Dr. Cobianchi visited her there, to his knowledge 'once or twice;' that witness was there present on one such occasion. He further stated that defendant asked to be called by the name of 'James' because he feared his telephone wires would be tapped; that defendant, after Geraldine's mother arrived, would call the witness at the hotel to learn of her condition. Witness testified that after Geraldine died he took a long ride with defendant who felt badly over her death and told him what a fine girl she was and also 'that was the first case he lost in his practice.' He asked witness how much money he had spent, and on being informed that he had spent $25, he gave this amount to witness, stating that Witness testified further that defendant paid $17 for Geraldine's apartment, $35 to her mother, and gave the witness $35, and told him that he was leaving for an operation and would write witness a letter, but that he did not do so. After a recess, witness was again called to the stand, and in response to the question, 'What did he say?' answered, 'He [refering to defendant] said it was the first case he had lost in twenty-five years of abortion.'
Witness Burr, a practical nurse who attended Geraldine for a week after her return from St. Luke's Hospital, stated that 'There was a man came there who was introduced to her as Henry, and whom she learned to be Dr. Cobianchi.' This man, she stated, telephoned every...
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