Coffman v. Commonwealth, Record No. 3452.
| Decision Date | 22 November 1948 |
| Docket Number | Record No. 3452. |
| Citation | 188 Va. 553 |
| Court | Virginia Supreme Court |
| Parties | IVA RODEFFER DAVIS COFFMAN v. COMMONWEALTH OF VIRGINIA. |
1. ABORTION — Admission of Evidence — Details of Cause and Circumstances of Death of Mother Resulting in Death of Unborn Infant — Case at Bar. — The instant case was a prosecution for abortion under section 4401 of the Code of 1942 (Michie). The indictment was coextensive with the statute, charging both the intent to destroy and to produce an abortion, the destruction of the child and the production of the abortion. Defendant contended that the admission of testimony as to the details of the cause and circumstances of the death of the mother was prejudicial to defendant and not warranted by the statute or the indictment; that she was indicted for abortion and was actually tried for murder, notwithstanding another indictment against her for the murder of the mother. Defendant had introduced testimony as to the details of the cause and circumstances of the mother's death before the Commonwealth offered any evidence as to the cause of death.
Held: That the contention failed for two reasons. First, because the testimony was introduced by defendant and entitled the Commonwealth to respond with evidence on the same subject. Second, the admission of that testimony, and the refusal of the court to require an election as to the substantive crime and the attempt, as well as the refusal of the court to strike the evidence relating to the substantive offense charged, were warranted under the statute and the indictment.
2. ABORTION — Definition. — Abortion is defined as "the expulsion of the fetus at so early a period of uterogestation that it has not acquired the power of sustaining an independent life." Although there may be a technical distinction recognized in medicine between abortion and miscarriage, the words are usually synonymous in law.
3. STATUTES — Construction — Statute Defining Crime — Decisions from Other Courts Where Statutes Different. — Where a crime is defined by statute the decisions of other courts whose statutes are different cannot control, and the legislative intent as expressed in the statute of the forum furnishes the only rule and guide.
4. ABORTION — Means of Abortion — Construction of Statute. — The rule of ejusdem generis does not apply to section 4401 of the Code of 1942 (Michie), which forbids the use of any means with intent to destroy an unborn child or to produce an abortion, and the prohibition is all-inclusive. The intent with which the means are used is the controlling factor.
5. ABORTION — Means of Abortion — Death of Mother as Means of Destruction of Child. — Under section 4401 of the Code of 1942 (Michie), which forbids the use of any means with intent to destroy an unborn child or to produce an abortion, if the means used with that intent result in the death of the mother and thereby the destruction of the child, the death of the mother is an agency set in motion by the means used to destroy the child.
6. ABORTION — Instruction — Instruction Relative to Death of Mother as Means of Death of Child — Case at Bar. — In the instant case, a prosecution for abortion under section 4401 of the Code of 1942 (Michie), the court instructed the jury that if defendant "by any means, with intent to destroy said unborn child or to produce an abortion or miscarriage * * *, committed or did any act or acts to destroy said child or commit an abortion," and the mother died as the result of such act or acts, then they should find defendant guilty of destroying the unborn child, as charged in the indictment. It was contended that the instruction erroneously submitted to the jury the decision as to whether defendant killed the mother.
Held: That there was no merit in the contention. While the instruction did submit the issue as to whether defendant killed the mother, it did so on the theory that defendant used some means on the mother with intent to destroy her unborn child and did destroy such child by causing the death of the mother. The evidence before the jury related to the substantive crime and the attempt.
Error to a judgment of the Circuit Court of Rockingham county. Hon. W. V. Ford, judge presiding.
The opinion states the case.
Francis S. Miller and Paxson, Williams & Fife, for the plaintiff in error.
J. Londsay Almond, Jr., Attorney General, and Henry T. Wickham, Special Assistant to the Attorney General, for the Commonwealth.
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 certan 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 to destroy 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 presecute 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 woman 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. Bennet, 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, 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 bathroom, 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 pocketbook, 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...
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