Coffman v. Commonwealth

• Decision Date: 22 November 1948
• Citation: 50 S.E.2d 431,188 Va. 553
• Parties: COFFMAN. v. COMMONWEALTH.
• Court: Virginia Supreme Court

50 S.E.2d 431

188 Va. 553

COFFMAN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 22, 1948.

Error to Circuit Court, Rockingham County; W. V. Ford, Judge.

Iva Rodeffer Davis Coffman was convicted of attempting to produce abortion, and she brings error.

Affirmed.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

Francis S. Miller, of Harrisonburg, and Paxson, Williams & Fife, of Charlottesville, for plaintiff, in error.

J. Lindsay Almond, Jr., Atty. Gen., and Henry T. Wickham, Sp. Asst. to Atty. Gen., for the Commonwealth.

BUCHANAN, Justice.

At the April term, 1947, an indictment was returned in the Circuit Court of Rockingham County charging that the defendant, Iva Rodeffer Davis Coffman, on or about the 28th of January, 1947, "unlawfully, feloniously and wilfully did use and employ in and upon the body of one Kerneda Bennett, a female person then and there pregnant with child, a certain instrument, the name and character of which is to said grand jurors unknown, with intent then and there to destroy the said unborn child of the said Kerneda Bennett and to produce an abortion or miscarriage, and then, there and thereby did unlawfully, feloniously and wilfully destroy such unborn child and produce such abortion or miscarriage, * * * ".

This indictment was made under section 4401 of the Code (Michie, 1942), which provides, so far as is pertinent here, as follows:

"If any person administer to, or cause to be taken by a woman, any drug or other thing, or use any means with intent to destroy her unborn child, or to produce abortion or miscarriage, and thereby destroy such child or produce such abortion or miscarriage, he shall be confined in the penitentiary not less than three nor more than ten years. * * *"

There was a trial by jury, which returned this verdict: "We,, the jury, find the accused, Iva Rodeffer Davis Coffman, guilty of attempting to produce an abortion or todestroy the unborn child of Kerneda Bennett as charged in the indictment, and fix her punishment by confinement in the Penitentiary for a period of five years."

The defendant was sentenced in accordance with that verdict and she now contends that the court committed these errors in the trial: In refusing to compel the Commonwealth to elect whether to prosecute for the substantive crime of abortion or for an attempt only; in refusing to strike the evidence relating to the substantive offense; in giving Instruction No. 1 for the Commonwealth, and in refusing to set aside the verdict and award the defendant a new trial.

It was conceded in the oral argument that the evidence was sufficient to support a conviction for an attempt, of which the jury found the defendant guilty, but it is argued that the defendant did not have a fair trial because while the evidence shows there was no abortion in fact, yet the issue of abortion was submitted to the jury on the theory that defendant caused the death of the mother and thereby caused the death of the child, resulting in the admission of irrelevant testimony prejudicial to defendant.

The case made by the evidence for the Commonwealth was this: Kerneda Bennett, a young women living with her husband in Harrisonburg, was pregnant by someone other than her husband. To get rid of the child she enlisted the aid of a friend, Mrs. Irene Davis. Mrs. Davis called the defendant, Mrs. Coffman, and asked her if she could see Mrs. Bennett and help her out of some trouble she was in. Together they visited Mrs. Coffman at her home in Mt. Crawford, near Harrisonburg. On that occasion Mrs. Coffman and Mrs. Bennett went into a bedroom of Mrs. Coffman's home, leaving Mrs. Davis in the living room. When they came out Mrs. Coffman told Mrs. Bennett to come back if nothing had happened in fourteen days, and if anything was said about why they were there to say they came to have a dress made.

About two weeks later, on January 27, Mrs. Bennett, who had not had the result she expected from the first visit, asked Mrs. Davis to make another appointment with Mrs. Coffman, which Mrs. Davis did. The next night, January 28, at about seven-thirty o'clock, Mrs. Davis and Mrs. Bennett drove to the home of Mrs. Coffman in a taxicab. On arrival Mrs. Coffman said if they had a taxicab waiting they had better get it over with pretty soon. Mrs. Coffman and Mrs. Bennett thereupon went into the bedroom, leaving Mrs. Davis in the living room. In about fifteen or twenty minutes Mrs. Davis thought she heard something fall, followed by some moving around. Then in a couple of minutes Mrs. Coffman came out and said, "Come in here. This woman has fainted." Mrs. Davis found Mrs. Bennett lying face down on the floor beside the bed with her head near the foot. She was dressed, except her shoes were off and her coat was across the foot of the bed. Mrs. Bennett was then groaning. Mrs. Coffman seemed very nervous. Mrs. Davis suggested that Mrs. Coffman call her husband, but Mrs. Coffman said, "No, get her to a hospital." Mrs. Davis then called the cab driver, who carried Mrs. Bennett out and put her into the cab. Mrs. Coffman then said, "You all have been to Mt. Sidney and not to Mt. Crawford." There was little sign of life then in Mrs. Bennett and when they arrived at the hospital she was dead. She had apparently been in good health up to this night.

Later that night the home of Mrs. Coffman was searched, but nothing of evidential value was found. Mrs. Coffman told the deputy sheriff that Mrs. Bennett asked to go to the bath room, and was shown into the bedroom; that she then said she was not feeling well and asked for a cup of water; that when this was brought Mrs. Bennett took two pills out of her pocket-book, swallowed them and jokingly said they were poison; that a few minutes later she fell off the stool onto the floor. Mrs. Coffman first denied having seen Mrs. Bennett before, but later admitted she had been there two weeks before. In Mrs. Bennett's handbag was later found a small box with some white pills in it, labeled as a prescription, with directions to take one three times a day after meals.

A week or more after Mrs. Bennett's death, Mrs. Coffman came to see Mrs. Davis at her home one night, inquiredwhether Mrs. Davis had made a statement to the Commonwealth's attorney, and offered to pay all lawyer's fees if Mrs. Davis "would stick with her."

Dr. Byers, coroner of the city of Harrisonburg and of Rockingham County, was called and reached the hospital about 8:20 p. m. He and Dr. Hill, a physican and surgeon in the city, performed an autopsy. They found no evidence of external injuries except a minute scratch on the perineum; there was a piece of tissue from the placenta in the cervix; there was one very small blood clot in the vagina; there was no blood in the abdominal cavity; there was a pregnant uterus in normal position and appearing normal; there was no injury to the uterine wall. On taking the uterus out it had a feeling of air in the cavity. On opening the uterus they found a pregnancy in it intact of between three and four months development. The heart, lungs, stomach and uterus were removed and sent to the Department of Pathology, University of Virginia, for microscopic study. The report from there did not indicate any finding as to the cause of Mrs. Bennett's death.

Dr. Byers gave it as his opinion from his examination and findings that an abortion had been attempted on Mrs. Bennett and that she had died as a result of an air embolism. He said that the death of the fetus was caused by lack of blood; that when the mother's blood stopped the baby died; that is, the baby died when the mother died. "I felt that the fetus died as a result of the death of the mother;" that the death of the mother came from an air embolism, and that the air embolism "came from the attempted abortion."

Dr. Hill testified that from their observation and findings "the only possible cause of death that we could arrive at was air embolism. * * * As I say, the only thing that we found was crepitation in the pregnant uterus which was caused, or is caused, or can only be caused by air entering under force from the outside." He testified that the injection of air into the uterus is used in attempting to produce abortion.

At the conclusion of the testimony of Mrs Bennett's husband and the taxicab driver, before Mrs. Davis had testified and before any medical evidence had been introduced by the Commonwealth, on motion of the defendant, Dr. James R. Cash, professor of pathology at the University of Virginia, testified as a witness for the defendant.

Dr. Cash testified that the heart, lungs, uterus with fetus attached, and stomach, sent to his department, had been examined by him. He testified in detail as to the result...