Damm v. State
| Decision Date | 06 April 1916 |
| Docket Number | 54. |
| Citation | 97 A. 645,128 Md. 665 |
| Parties | DAMM v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Allegany County; Robert R. Henderson and M. L. Keedy, Judges.
"To be officially reported."
William G. Damm was convicted of manslaughter by abortion, and he appeals. Judgment affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, and STOCKBRIDGE, JJ.
David A. Robb and D. Lindley Sloan, both of Cumberland, for appellant.
Frank A. Perdew, of Cumberland, and Albert C. Ritchie, Atty. Gen for the State.
The appellant was convicted of manslaughter by abortion. Four hills of exception to rulings on the evidence are in the record, but the second and third, which related to a dying declaration of Mrs. Sutton, the deceased woman mentioned in the indictment, were abandoned. The only questions therefore presented to us for review are those contained in the first and fourth bills of exception.
1. Dr Littlefield, a practicing physician in Cumberland, testified that he was called to a private house in that city about 11:30 p. m. on Sunday, the 21st of March, 1915; that he was introduced to Mrs. Sutton, and on examining her he found her very sick. He was then asked to "tell the nature of her illness and how she was suffering to the jury," and he answered:
The record then states:
And the bill then concluded in the usual way, being signed by the two judges who sat. The record then proceeds:
The witness was then examined at length by the state's attorney and on cross-examination.
There was no exception noted to the part of the testimony quoted above--beginning, "Continuing, the said witness testified as follows." In that he said: "She stated she had an instrument introduced into her womb on Saturday--that is, the preceding day--in the morning, and Friday in the morning." It was contended by the state that even if there was error in the ruling stated in the exception, it was not reversible error, as it was repeated without objection in the subsequent evidence of the witness. It is also urged by the state that inasmuch as the dying declaration was subsequently admitted and it fully covered and included what was objected to in this exception, no possible injury was done the accused, and hence there was no reversible error, even if it be conceded that the statement of the witness as to something having been introduced in her womb should have been excluded.
Technically the testimony set out in the record after the signatures of the judges in the first bill of exceptions may be said to have corrected the alleged error in permitting the witness to say, "She gave a history of having something introduced into her uterus," etc., as apparently that went in without objection. The exception states, "To which answer the defendant objected," etc. The answer there excepted to was, as the exception is drawn, what precedes the conclusion of the bill of exceptions; but, assuming that so much as followed as a part of the answer to the question which elicited the answer was intended to be included in the exception, it seems to us to be clear that if we concede that it was error to permit the witness to speak of the history of "having something introduced into her uterus," it was harmless error. At a time when there can be no doubt about the admissibility of the statement of the deceased woman, as a dying declaration, and as we have seen the exceptions to its admissibility were abandoned, the following testimony was given--Dr. Littlefield still being on the stand:
After some further testimony as to the description of the doctor and reference to a written declaration, which the witness said he wrote and Mrs. Sutton said was correct, and then signed it in the presence of two nurses in the hospital, where she was, the following was introduced in evidence:
That is signed "Mrs. Lee Sutton," and was witnessed by the two nurses and Dr. Littlefield.
On cross-examination the fact that an autopsy was performed by Dr. Littlefield, assisted by Dr. Claybrook was brought out. He said they found what looked as if it had been a puncture. He said:
"There was no hole there at the time I had the autopsy; simply a highly hemorrhagic tract." That "after I found the hemorrhagic tract, I took a knife and followed it up."
This witness was examined at great length on cross-examination. He said he first saw her March 21st and a collapse came the evening of April 8th. The latter was the date when she signed the declaration. Dr Littlefield said she told of what Dr. Damm had done seven or eight times. The two nurses also testified as to the dying declaration, which was signed on Thursday, and she lived until Saturday. On the latter date she told Dr. Littlefield that she recalled the declaration and it was correct.
When all of these facts are taken into consideration it is not possible to perceive any injury that could have been done the appellant by the statement made by Dr. Littlefield which is objected to, if it be conceded to have been error in allowing it to remain in. He did not then state who she said had introduced the instrument and was only giving it in explanation of his diagnosis. It was not offered to prove the fact of the introduction of the instrument, but merely mentioned by the doctor in connection with his diagnosis. If the deceased had died without making any statement which could properly have been introduced as a dying declaration, then assuming, as we are now doing, that there was error in this ruling, it might be said to have been injurious error and hence reversible; but inasmuch as it is shown without objection-- indeed brought out on cross-examination by the appellant--that Mrs. Sutton spoke of the matter to Dr. Littlefield six or seven times during her stay in the hospital, to which she was removed the night he first saw her, and as her statements made under circumstances that justified their admission are dying declarations were offered in evidence to prove the fact, we cannot see how it was possible for the accused to have been injured by the answer of Dr. Littlefield included in the first bill of exceptions. Many decisions of this court might be cited to show that when evidence is admitted over the objection of an appellant, which was inadmissible, if the same evidence is afterwards admitted without objection it is treated as harmless error. If then its admission be improper at first by reason of conditions not being shown which authorized its admission, but afterwards conditions were clearly proven which make it admissible beyond question, and it is so admitted and repeated, not merely once but a number of times, without objection and without any grounds upon which objection could have been founded, how is it possible to say that there was injury as well as error?
That would be so, even if it had originally been admitted for the purpose of proving the fact, and there is certainly much less danger of injury when it is merely stated by a physician in explanation of a diagnosis he made. Possibly there might be circumstances where it could be said that there was danger of the jury treating the evidence which was inadmissible at the time as corroborative of it when it was properly admitted. But it would be altogether improbable that such a statement of a person then dead narrated by a physician in explaining his diagnosis would have any effect upon the minds of jurors, or make any impression on them, after they had heard repeated over and over again much stronger and more definite statements of the same facts as coming from that same person, which were made at a time which must and does carry more weight than under almost any other circumstances. If dying declarations are made under conditions which relieve them of doubt...
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