Davis v. State

• Decision Date: 04 February 1925
• Docket Number: A-4828.
• Citation: 234 P. 787,30 Okla.Crim. 61
• Parties: DAVIS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

234 P. 787

30 Okla.Crim. 61

DAVIS v. STATE.

No. A-4828.

Court of Criminal Appeals of Oklahoma

February 4, 1925

Rehearing Denied April 11, 1925.

Syllabus by the Court.

The immunity guaranteed by the provisions of the Bill of Rights (Const. art. 2, § 30) against unreasonable searches and seizures does not extend to the tools, implements, and papers found on the person or in the possession of the person lawfully placed under arrest, where such tools, implements or papers have been, or manifestly may be, used to perpetrate the crime charged.

There is a well-defined distinction between the right to seize contraband goods and papers under authority of a warrant of arrest and under authority of a search warrant.Under a warrant of arrest a seizure may follow as an incident to the arrest; a "search warrant" is a kind of writ of discovery, and the arrest of the offender, if any, follows the discovery as an incident ancillary to it.

Where the instrumentalities for committing the crime are taken from the person or possession of the person lawfully arrested their introduction in evidence is ordinarily not objectionable as being in violation of the provision of the Bill of Rights (Const. art. 2, § 21) against requiring the accused to give testimony against himself.

Where the tools and instruments found in the possession of the person lawfully arrested are numerous or cumbersome, so that the officer making the arrest cannot at the time of the arrest take them with him, he may convey the prisoner to a place of safety and return to the place of arrest and seize the things found in the possession of the person arrested without a search warrant.

An exception to the rule of evidence that evidence of other offenses cannot be introduced to establish the commission of the offense charged arises where the other offense or offenses tend to identify the accused with the offense charged; or where such testimony is for the purpose of showing that the offense charged was a part of a system or common scheme or plan, including other like offenses; or where proof of a separate offense is explanatory of the motive or intent of the offender in the commission of the crime charged.

Where the relevancy and probative force of proffered testimony is vague, remote, and of doubtful value, its exclusion is not error.

Rule that the testimony of accomplices must be corroborated not applicable.

Appeal from District Court, Oklahoma County; A. S. Wells, Special Judge.

A. B C. Davis was convicted of murder, and he appeals.Affirmed.

John R. Guyer, C. D. Peck, and Victor A. Sniggs, all of Oklahoma City, for plaintiff in error.

The Attorney General and Baxter Taylor, Asst. Atty. Gen., for the State.

BESSEY P.J.

On April 1, 1923, a physician, A. B. C. Davis, plaintiff in error, herein referred to as the defendant, was in the district court of Oklahoma county, by a verdict of a jury, found guilty of the murder of Mary Sudik, accomplished by the use and employment of instruments upon her for the purpose of producing a criminal abortion.The punishment imposed by the jury was imprisonment for life.This appeal is from the judgment on the verdict, after the overruling of a motion for a new trial.

The evidence on the part of the state indicates that the defendant maintained an office, operating rooms, and rooms with beds for patients at 115 1/2 West Grand avenue, Oklahoma City; that Mary Sudik and her husband, Ernest Sudik, lived some miles southeast of Oklahoma City, on a truck farm; that early in February, 1923, Mary Sudik ascertained that she was pregnant, and that she and her husband thereupon endeavored to find some one who would perform an operation upon her to bring on a miscarriage; that after making some inquiries they were directed to go to the office of the defendant.On February 10th they accordingly went to defendant's office and told him of Mrs. Sudik's pregnancy and that she wished to be relieved from that condition.The defendant told them that he could do that kind of work; that it would not be dangerous; and they then entered into an agreement for the operation and the compensation to be paid therefor.After the necessary preparation, the patient was placed upon the operating table and the operation performed, by means of certain instruments, culminating in an abortion.At the time of the operation, or in consequence of it, the patient became infected with blood poison which resulted fatally.Later the husband of the deceased woman returned to the office of the defendant and apprised him of the fatal result of the operation.The defendant said he was sorry and offered the husband money, as he said, to help defray the expenses of the funeral.The husband did not take any money at this time, but later complained to the county attorney of defendant's treatment of his wife and her death.The county attorney advised him to return to the office of the defendant and take any money which he might offer him, and this was accordingly done.Upon this second visit defendant gave to Mr. Sudik the sum of $50, but before paying it induced the husband to sign the following written statement:

"Oklahoma City, Okl., Feb. 20, 1923.

This will exonerate Dr. A. B. C. Davis from any blame concerning the illness or death of my wife, Mary Sudik, on February 12, 1923, near Moore, Oklahoma.Ernest Sudik.

Witness: Gus Sudik."

Mr. Sudik then, according to a prearranged plan, returned to the county attorney's office and turned over to the county attorney the money which Dr. Davis had given him, whereupon a warrant of arrest was issued for the defendant.A deputy sheriff went to the defendant's office, placed him under arrest, and conveyed him to jail.At the time of the arrest the officer seized a large quantity of ergot and other drugs commonly used to bring about miscarriages.Immediately after placing the defendant in jail, the officers returned to defendant's office and seized and carried away some instruments and appliances commonly used to perform abortions.The officers at this time also seized and carried away a number of written statements signed by divers women, the purport of which was that the persons signing these papers agreed to hold the defendant blameless for any dangerous or fatal results that might follow his treatment of them, and in all of which, by words or inference, it was indicated that the anticipated danger was caused by self-inflicted treatment or by operations performed by others.Many of the persons who had signed these statements were later found by the county attorney and subp naed as witnesses for the state.They all testified that the defendant had performed operations upon them under circumstances indicating that his practice consisted chiefly in performing abortions.One of these witnesses was convalescing from such an operation in one of the beds in the room adjoining the doctor's office at the time of his arrest; another one came there for an operation while the premises were in charge of the officers and were being searched by them, following the arrest.These several operations performed upon other women, as shown by the witnesses who testified at the trial, were performed at various times within the three or four months immediately preceding the time of the defendant's arrest.

The defendant admitted that he had administered medical and surgical treatment to different women patients, but claimed that he did not commit nor attempt abortions upon any of them.Concerning treatment given to these women, as shown by the statements exonerating him from serious or fatal results, the defendant claimed that these women all came to him after having attempted abortions upon themselves or after some other person had attempted to perform such operations upon them; and that the treatment the defendant administered was only such as seemed necessary under all the conditions apparent.Defendant claimed that this was the case with the deceased, and that he did no more than administer to her such treatment as the case seemed to warrant.

The numerous assignments of error urged in this appeal may be grouped thus:

(1) That the instruments, medicines, and documents seized and taken from the office of the defendant were inadmissible as evidence because they were obtained by illegal and unreasonable search and seizure; that using them as evidence was compelling the defendant to give evidence against himself.

(2) That the evidence of the several other abortions performed upon other women by the defendant near the time of the particular offense here charged was inadmissible.

(3) That the evidence of Mrs. Kinney, from which the jury might have drawn an inference that Mary Sudik may have procured the abortion elsewhere, or may have performed it herself, was improperly withdrawn from the jury.

(4) That there was no sufficient corroboration of the testimony of the several women who were self-confessed accomplices with the defendant in separate offenses.

(5) Misconduct of the county attorney.

The immunity guaranteed by the provisions of the Bill of Rights (Const. art. 2, § 30) against unreasonable searches and seizures does not extend to the tools, implements, and papers found on the person or in the possession of the person lawfully placed under arrest, where such tools, implements or papers have been or manifestly may be used to perpetrate the crime charged.This provision was designed to protect persons from...