Dorroh v. Commonwealth

• Decision Date: 14 November 1930
• Citation: 236 Ky. 68,32 S.W.2d 550
• Parties: DORROH v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

32 S.W.2d 550

236 Ky. 68

DORROH v. COMMONWEALTH.

Court of Appeals of Kentucky

November 14, 1930

Appeal from Circuit Court, Boyd County.

Dr. H C. Dorroh was convicted of criminal abortion resulting in death, and he appeals.

Reversed.

John S Fullerton, of Ashland, for appellant.

J. W Cammack, Atty. Gen., and Douglas C. Vest, of Frankfort, for the Commonwealth.

DRURY C.

Dr. H C. Dorroh seeks by this appeal to reverse a judgment imposing upon him two years' confinement in the penitentiary for the death of Bessie Kouns resulting from an alleged criminal abortion.

On Saturday, April 14, 1928, Dr. T. D. Goodman was called to see Bessie Kouns. He found her suffering great pain with considerable swelling and tenderness in lower abdominal region. He saw her again on the 15th, 16th, and 17th, her condition was not responding to treatment, and on the latter date she was at his suggestion taken to the Stephenson Hospital in Ashland, Ky. Her condition did not improve, and on April 24th the peritonitic condition of her abdomen had become such that her bowels had become plastic and an immediate operation was imperative to relieve her of resulting intestinal obstruction. She was fully aware she would probably die, and Dr. Stephenson testified:

"She told me that she wanted to make a statement of those facts before we operated her. *** Did she or not at that time say that she believed she was going to die? Yes. *** Tell the jury what she said at that time about how Doctor Dorroh performed this operation on her. *** She said that she went to Doctor Dorroh's office about 7:00 o'clock, I believe, on Saturday evening, and that Doctor Dorroh was drinking and didn't recognize her, and that she had to remind him of an engagement she had with him to open her womb at that time, and she said that he swore and told her to get on the table, and that she did, and that when she got on the table, he started to get ready to use an instrument and dropped that instrument on the floor and picked it up and stuck it in her uterus and nearly killed her."

A stenographer was sent for and deceased made a statement, attributing her condition then to the act of Dr. Dorroh. On Tuesday, May 1, 1928, Bessie Kouns died.

Dr. Dorroh, when testifying in his own behalf, said Bessie Kouns visited him professionally in February, 1928, that she was suffering then from gonorrhea, and he treated her therefor and discharged her as cured on March 18, 1928. He denied doing anything to her to produce an abortion, or that he even knew she was pregnant. He testified in detail about the treatment given her for gonorrhea, said that was the proper treatment therefor, and that this treatment of the disease itself might produce an abortion. All the physicians who testify seem to regard the treatment used as a proper one for gonorrhea, but they were about equally divided upon whether it or the disease it was used for would themselves produce an abortion. He proved by Thelma Watson, an assistant in his office, that Bessie Kouns came there several times and was treated by Dr. Dorroh in his office. He proved by Richard Ratliff that Bessie Kouns told him she had the gonorrhea. The court later and properly sustained an objection to this evidence but did not withdraw it from the jury. The record contains this:

"Mrs. Otie Miller and Mrs. Blevins, had been subpoenaed as witnesses and failed to answer, and it is agreed between the commonwealth and the defendant that these witnesses, if present, would testify that some days before Bessie Kouns was taken to the hospital, they met her upon one of the public streets of the city of Ashland and that she told them she was in a pregnant condition and had attempted to perform an abortion by the use of a lead pencil and that she was suffering greatly from it. The court sustains the objection of the commonwealth as to the competency of said testimony and holds that it is not competent, to which ruling the defendant excepts."

Grounds Urged for Reversal

His first attack is directed to the indictment, but it follows the language of the statute, contains all necessary allegations, and meets the requirements of sections 122 and 124 of the Criminal Code of Practice. See Commonwealth v Allen, 191 Ky. 624, 231 S.W. 41.

The Venue.

He contends the commonwealth failed to prove the venue by failing to show this crime was committed in Boyd county, but he is mistaken. Miss Kouns' dying statement shows this was done at the office of Dr. Dorroh, which was shown to be on Winchester avenue, in Ashland, Boyd county, Ky.

Evidence Excluded.

The court erred in excluding the offered evidence of Mrs. Miller and Mrs. Blevins quoted above. This is taken with approval from 1 R. C. L. p. 548, § 97:

"The dying declaration of a person is simply a part of the evidence. It is not regarded in law as more sacred than the testimony of a witness, to say the least of it. It is subject to discredit and impeachment by any competent testimony which impairs its value. The rule is general that the credit of a witness may be impeached by proof that he made statements contrary to what he has testified to.

There is, it is true, a condition to the rule with reference to verbal statements, that the attention of the witness must be previously called to the particular occasion and circumstances under which the supposed contradictory statements were made, in order to give him an opportunity of making any explanation of the matter which he may have. But this preliminary condition, it is clear, cannot be complied with when dying declarations are offered in evidence, except in the very rare cases. Such declarations are generally made to the physician or friends of the declarant in the absence of the party against whom they are...