Davis v. State

• Decision Date: 11 July 1910
• Citation: 130 S.W. 547,96 Ark. 7
• Parties: DAVIS v. STATE
• Court: Arkansas Supreme Court

130 S.W. 547

96 Ark. 7

DAVIS v. STATE

Supreme Court of Arkansas

July 11, 1910

Appeal from Conway Circuit Court; Hugh Basham, Judge; affirmed.

Judgment affirmed.

Sellers & Sellers and Moose & Reid, for appellant.

Indictments for statutory offenses must include all the elements of the offense. 6 Ark. 519; 12 Ark. 609; 29 Ark. 147; 62 Ark. 512; 47 Ark. 488; Id. 572. An expert can not base his opinion on the history of the case. 27 Kan. 463; 78 Wis. 84; 40 L. R. A. 836. Besides, a hypothetical question that assumes as true the fact in issue is erroneous. 17 O. St 522; 51 P. 808; 35 F. 730. The question as to whether the witness was an accomplice should have been submitted to the jury. 36 Ark. 117; 90 Ark. 461; 12 Cyc. 192. The mere failure to disclose the commission of a felony does not make one an accessory. 43 Ark. 367; 12 S.W. 491. One accomplice cannot corroborate another. 4 Greenl. 65; 42 Conn. 261; 61 S.W. 16; 61 S.W. 756; 61 S.W. 735; 8 S.W. 865; 18 S.W. 645; 44 S.W 495; 5 Am. St. R. 916. The defendant's failure to testify cannot be made the subject of comment to his prejudice. 62 Ark. 126; 22 Ia. 253; 58 Ia. 473; 61 Ark. 130; 62 Ark. 516; 74 Ark. 256; 70 Ark. 306; 77 Ark. 238; 65 Ark. 625; 75 Ark 577; 72 Ark. 468; 63 Ark. 174; 74 Ark. 210; 72 Ark. 139; 76 Ark. 276; 65 Ark. 389; 7 Ark. 179; 76 Ark. 370; 89 Ark. 58; 87 Ark. 461; 87 Ark. 515; 81 Ark. 25; 81 Ark. 231; 80 Ark. 23.

Hal L. Norwood, Attorney General, and W. H. Rector, Assistant, for appellee.

The indictment was sufficient. Kirby's Dig. §§ 2228, 2241, 2242, 2243; 84 Ark. 477. The question asked Dr. Steel as an expert was correct. 28 Vt. 554. The prosecuting attorney's remarks were not prejudicial.

OPINION

FRAUENTHAL, J.

The defendant, Lawrence Davis, was indicted by the grand jury of Conway County, charged with the crime of committing an abortion. The charging part of the indictment was as follows: "The said Lawrence Davis, in the county and State aforesaid, on the 1st day of June, 1908, did unlawfully, wilfully and feloniously administer and prescribe to one May Cooper, a woman pregnant and with child and before the period of quickening, a large quantity of medicine and drugs, with the unlawful, wilful and felonious intent then and there and thereby to produce an abortion and premature delivery of said foetus; against," etc.

To this indictment the defendant interposed a demurrer, which was overruled. Upon his trial the jury found the defendant guilty of the crime, and assessed his punishment at one year's imprisonment in the penitentiary and a fine of one hundred dollars.

It is urged by counsel for the defendant that the indictment is fatally defective because it does not charge that the defendant administered the medicine with the intent to commit the abortion before the period of quickening. The crime with which the defendant was charged is defined by section 1570 of Kirby's Digest, which is as follows: "It shall be unlawful for any one to administer or prescribe any medicine or drugs to any woman with child with intent to produce an abortion or premature delivery of any foetus before the period of quickening. * * * And any person offending against the provisions of this section shall be fined in any sum not exceeding one thousand dollars and imprisoned in the penitentiary not less than one nor more than five years. * * *"

The felony thus created by the statute consists in the criminal act of administering or prescribing medicine to the woman with child with intent to produce an abortion. An abortion is the delivery or expulsion of the human foetus prematurely. There must be an intent to cause the abortion without lawful reason, and this must be accompanied by the unlawful act of administering the drug. In the case of State v. Reed, 45 Ark. 333, it was held that under this statute the indictment must allege that the criminal act of administering the drug was done "before the period of quickening." That is the time when the overt act must be committed; and when that act is accompanied by the intent to produce an abortion, the crime is complete. The criminal intent consists in the design to cause an abortion, whether it shall result before or after the period of quickening. The intent becomes criminal by reason of the unlawful design for which the medicine is administered; and when the medicine is administered with this unlawful design, the act becomes criminal, without the necessity of any other or further intent. The criminal act under this statute was complete when the drug was administered "before the period of quickening" for the purpose of causing an abortion; that is, with the intent of causing a delivery or expulsion of the human foetus prematurely. The indictment sufficiently made this charge; and it was not necessary to charge also that the drug was administered for the purpose of causing a delivery or expulsion of the human foetus before the period of quickening.

Upon the trial of the case the defendant introduced as an expert witness, Dr. Steel, a practicing physician. The State had prior to this introduced a witness, Dr. J. C. Cunningham, who had testified that he had examined May Cooper and found certain conditions and symptoms, which he detailed, and which he stated indicated pregnancy. Dr. Steel testified that no positive diagnosis of pregnancy could be made from these conditions and symptoms detailed by Dr. Cunningham. Upon cross examination the following question was propounded to Dr. Steel by the State:

"Q. Assuming that a woman had been criminally intimate with a man for quite a while, and that you received information that she was in a family way, and that an abortion was to be produced, and you was called to see her, and found her suffering with a dilated os, these hemorrhages, and the breasts as mentioned, and if you found softening of the lower vagina with pains bearing down, in your opinion, what would be the matter with her? How would you diagnose that?"

Objection was made to the asking of this question, and, the objection being overruled, the witness answered: "Information beforehand, coupled with this, of course my opinion would be an abortion." There was no objection made to the answer, nor any motion to exclude it.

It is urged that it was erroneous to permit this question to be propounded for the reason that it asked for an opinion based on hearsay alone. But we do not agree with this contention. May Cooper had prior to this appeared as a witness in the case, and had testified to her condition when she was examined by Dr. Cunningham, and she stated that she was pregnant when the drug was administered, and that the defendant had given it to her for the purpose of producing an abortion; and Dr. Cunningham had testified to the details of her condition when examined by him, which are set out in the question. So that all the facts set out in the question propounded to Dr. Steel had been testified to before the jury. The question was not based upon hearsay testimony, but was based upon facts proved before the jury. If it should be considered that this question was propounded to Dr. Steel for the purpose of obtaining the opinion of an expert witness upon a hypothetical question, it was competent because it was based upon facts as proved before the jury. A physician cannot testify as to his opinion based upon a history of the case given to him out of the court room, because such history would be based on statements not made under oath. But it is competent to propound to a physician a hypothetical question based upon facts that were testified to by other witnesses in the case, for the purpose of obtaining his opinion upon such facts thus proved before the jury. Wigmore on Ev. § 688; 1 Greenleaf on Ev., § 102; Atchison, T. & S. F. Rd. Co. v. Frazier, 27 Kan. 463; Vosburg v. Putney, 78 Wis. 84, 47 N.W. 99; Heald v. Thing, 45 Me. 392; 1 Ency. Plead. & Prac. 145.

We do not think that it was improper to permit the question to be propounded to Dr. Steel. The answer was not responsive to the question, and it was not proper for the physician to state what his opinion would have been if based upon information received, as he said, "beforehand." But the answer was not objected to, and no request was made to exclude it. And we are also of the opinion that this examination was competent for the reason that it consisted of the cross examination of an opposing witness, and its purpose was to test his competency as an expert as well as to affect his credibility as a witness.

It is urged that the court erred in permitting the witness May Cooper to testify to certain abuses that had been visited upon her by defendant's relatives in the absence of the defendant. This testimony was admitted for the purpose of explaining why a certain letter was written by a relative of the witness. This letter was introduced by the defendant himself, who contended that it had been written by the witness. The object of its introduction was to contradict the witness by its contents; to show that she had written the letter, and that it contained matter which was contradictory of statements made by her on the witness stand. The letter referred to abuses which had been heaped upon her by the relatives of the defendant, and spoke of the defendant in virulent and bitter terms. On the stand she testified...