DiXon v. State

• Decision Date: 07 November 1895
• Citation: 64 N.W. 961,46 Neb. 298
• Parties: DIXON v. STATE.
• Court: Nebraska Supreme Court

46 Neb. 298

64 N.W. 961

DIXON

v.STATE.

Supreme Court of Nebraska.

Nov. 7, 1895.

Syllabus by the Court.

1. In criminal cases, as in civil, facts may be established by circumstances as well as by direct evidence; and a verdict of guilty is supported by the evidence when the circumstances proved lead beyond a reasonable doubt to inferences of the facts essential to establish the defendant's guilt.

2. The fact that a witness testified differently in the preliminary examination and on the trial does not require that her testimony on the trial shall be rejected. Her credibility is for the jury.

3. Sections 1 and 2 of the Criminal Code, so far as they define accessories, are declaratory of the common law. One who is present when the crime is committed, aiding and assisting therein, is, notwithstanding these sections, a principal, although his hand was not the instrument through which the crime was perpetrated.

4. A defendant in a prosecution for producing an abortion having testified in chief that his acquaintance with the woman on whom the operation was performed was not intimate, it was material and proper cross-examination to show by him that he had been criminally intimate with her.

5. While it is the better practice in a criminal case for the trial court to charge the jury in concise and informal language what facts are essential to warrant a conviction, the defendant cannot complain if the court charges the jury in the language of the information that all the allegations thereof are material, no technical or ambiguous language being used.

6. The repetition of a proposition of law in instructions is not reversible error where it has not been of such a character as to prejudice the rights of the accused.

7. A prosecuting attorney has the same right as counsel in a civil action to request instructions, and instructions given at the request of counsel are entitled to the same weight as instructions given by the court of its own motion.

8. Where a continuance is asked for the purpose of meeting evidence unexpectedly adduced by the other party, it must, among other things, be shown that the party seeking the continuance expects to procure evidence to meet the new features, and the nature of such evidence.

9. It is within the discretion of the trial court to limit the time for arguments to the jury; and an order so limiting time presents no question for review, unless it is made to appear that the arguments were thereby unduly restricted, and that the time allotted to the complaining party was consumed.

Error to district court, York county; Bates, Judge.

Arthur J. Dixon was convicted of violation of Cr. Code, § 6, and brings error. Affirmed.

Geo. B. France and Chas. H. Sloan, for plaintiff in error.

A. S. Churchill, Atty. Gen., for the State.

IRVINE, C.

The plaintiff in error was convicted on an information charging him under section 6655, Comp. St. 1895 (Cr. Code, § 6), of having in York county, on the 22d day of June, 1893, employed in and upon the body and womb of a woman named in the information a certain instrument, with intent unlawfully, willfully, and feloniously to destroy a vitalized embryo,--in other words, of producing an abortion.

Several of the assignments of error go in effect to the sufficiency of the evidence, and, by considering this question here, a detailed consideration of some other assignments will be rendered unnecessary. The statute under which the infomation was drawn is as follows (section 6655): “Any physician or other person who shall administer, or advise to be administered, to any pregnant woman with a vitalized embryo, or fœtus, at any stage of utero-gestation, any medicine, drug, or substance whatever, or who shall use or employ, or advise to be used or employed, any instrument or other means with intent thereby to destroy such vitalized embryo, or fœtus, unless the same shall have been necessary to preserve the life of the mother, or shall have been advised by two physicians to be necessary for such purpose, shall in case of the death of such vitalized embryo, or fœtus, or mother, in consequence thereof, be imprisoned in the penitentiary not less than one nor more than ten years.” It is contended that the evidence was insufficient to prove that the embryo was vitalized, that the operation was not necessary to save the life of the mother, or that it was not advised by two physicians to be necessary for that purpose; and, further, that there was no evidence that the defendant committed the act.

The first two objections may be considered together. The evidence tended to show that the mother had been criminally intimate with the defendant; that she became pregnant, and informed the defendant of that fact; that he had endeavored to induce her to take drugs for the purpose of producing an abortion, and at one time, at least, left with her an instrument which he endeavored to have her use for that purpose; that she had until after the occurrence of this incident been employed at an hotel in Lushton. She left that employment, and went to the home of her mother and stepfather, where, on the night of June 21st, she was visited by the defendant, who then informed her that he had procured a physician to perform an operation for the purpose of producing an abortion, and arranged with her to take her out on the following evening, ostensibly to a dance, but really for the purpose of having the operation performed. The following evening he came between 8 and 9 o'clock, and it was announced to the girl's mother that, on account of the lateness of the hour, they would not go to the dance, but would go driving together. They drove away together in a buggy, entered the town of Lushton, drove to the house of the physician, who joined them in the buggy, and the three drove into the country to a point along the railroad track where they stopped and dismounted. The defendant took the horses and buggy across the railroad track, and stood there, having declared it his intention to keep a lookout against interruption, while the physician introduced the instrument for the purpose of producing an abortion, and which did have that effect. The girl's health had to this time been good, and there was evidence tending to show that the fœtus, when born, was well developed. This was sufficient to justify a finding that it was alive, or vitalized; especially in view of the expert testimony which was introduced.

There is no occasion in the case to enter into a discussion of the burden of proof of the exceptions of the statute. The information charged that this act was not within the exceptions. Assuming, under the general rule of criminal procedure, that the burden was upon the state to establish every element of the offense beyond a reasonable doubt, and beyond a reasonable doubt to exclude these exceptions, there was evidence sufficient to exclude them. Such evidence was not necessarily by direct testimony in totidem verbis to the fact that the operation was not necessary to save the life of the mother, and that it had not been advised by two physicians as necessary for that purpose. In the contemplation of law, jurors are sane men, capable of drawing inferences while sitting as jurors such as sane and reasonable men draw under other circumstances. They must believe as jurors what they believe as men, and they cannot disbelieve as jurors what as men they believe. The only distinction arising from their position is that as jurors their inferences must be drawn from the evidence in the case, and not from extraneous circumstances beyond the evidence. There is affirmative evidence in this case that the woman in question had never been advised that such an act was necessary to preserve her life. There is evidence that, down to the time of this event, she was a woman of at least ordinarily good health. From these facts and from the other circumstances which the facts tended to prove, if the direct evidence was to be believed, it was not only a fair inference, but it was an...