Grecu v. State
| Citation | 120 N.E.2d 179,233 Ind. 464 |
| Decision Date | 10 June 1954 |
| Docket Number | No. 29085,29085 |
| Parties | GRECU v. STATE. |
| Court | Indiana Supreme Court |
Edward M. Slocum, Inezellen Bales, Indianapolis, for appellant.
Edwin K. Steers, Atty. Gen. of Indiana, Owen S. Boling, Deputy Atty. Gen., Richard M. Givan, Dep. Atty. Gen., for appellee.
Appellant was charged by affidavit under Acts 1905, ch. 169, § 367, p. 584, being § 10-105, Burns' 1942 Replacement, with an attempt to procure the miscarriage of a pregnant woman. He was tried by the court, without the intervention of a jury, found guilty as charged, sentenced to the Indiana State Prison for a perior of not less than three, nor more than fourteen years, and fined in the sum of $350.
Two errors are assigned.
1. That the court erred in overruling appellant's motion for new trial.
2. That the court erred in overruling appellant's petition to file belated supplemental motion for new trial after expiration of thirty days.
First: It is necessary to consider assigned error No. 2 before considering the questions raised by the motion for a new trial.
Appellant's petition to file belated supplemental motion for a new trial is not based upon facts discovered after the time had expired for the filing of a motion for a new trial but, on the contrary, rests upon alleged matters of omission and commission during the course of the trial, and is not such that it may be construed as a petition for a writ of error coram nobis as was the case in Sharp v. State, 1939, 215 Ind. 505, 19 N.E.2d 942. Appellant's petition is what he has chosen to denominate it--a 'Supplemental Motion for New Trial.' Since it was filed after the statutory period for the filing of motions for a new trial had expired, the trial court did not err in refusing appellant permission to file his supplemental motion for new trial, and such petition presents nothing for our consideration on appeal. Morton v. State, 1935, 209 Ind. 159, 171, 198 N.E. 307; State ex rel. Lake v. Bain, 1948, 225 Ind. 505, 76 N.E.2d 679; Walker v. State, 1948, 226 Ind. 552, 82 N.E.2d 245. See also 1 F. W. & H. Ind. Tr. & App. Pract. § 1820, p. 395.
Second: Appellant timely filed a motion for a new trial assigning as grounds therefor that the finding and decision of the court is not sustained by sufficient evidence, and is contrary to law.
In order to sustain the finding and decision of the trial court herein it was necessary for the state to prove beyond a reasonable doubt that appellant unlawfully procured the miscarriage of the person named in the affidavit. This may be shown either by direct or circumstantial evidence. Gammack v. State, 1937, 211 Ind. 208, 6 N.E.2d 328; Diehl v. State, 1901, 157 Ind. 549, 62 N.E. 51.
There are three equally essential elements of the crime with which appellant is charged: (1) the use of an instrument to cause the miscarriage of the pregnant girl named in the affidavit; (2) that the alleged act was performed by appellant; and (3) that such miscarriage was not necessary to preserve the life of such girl.
A careful examination of the record discloses evidence sufficient to prove that the girl named in the affidavit was pregnant; that an operation was performed upon her by the use of an instrument; and that such operation produced a miscarriage. This appellant does not dispute. However, he contends that there is not sufficient evidence to show that he performed the alleged act.
The girl's father testified that he took her to the address in Gary which had been given to him by someone in South Bend. He then testified as follows:
This witness further testified that after he was notified that the girl was ill he went back to the address in Gary where he had left her and they told him that they had taken the girl to the hospital; that he talked to 'Tommy' who returned the $350 which had been paid for producing the miscarriage, and that 'Tommy' said that he would do everything in his power for 'her.'
The girl testified that a woman prepared her for the abortion, and that Dr. Grecu performed the operation; that she didn't see any instrument, but that he worked on her internally thru the uterus and she subsequently became quite ill.
She further testified that Dr. Grecu took her to the hospital and that 'the defendant' there represented himself as her 'uncle.'
The physician who operated on the girl at the hospital testified, in part, as follows:
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Campbell v. State
...has passed if the amendment or supplement is predicated on facts discovered after the expiration of the deadline. See Grecu v. Indiana, 233 Ind. 464, 120 N.E.2d 179 (1954) (finding that it is proper to consider a supplemental motion after the filing period has passed based on the theory tha......
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State v. Unosawa
...to preserve life by introducing evidence of the good health of decedent prior to the operation. State v. Martin, supra; Grecu v. State, 1954, 233 Ind. 464, 120 N.E.2d 179; People v. Emery, 1947, 79 Cal. App.2d 226, 179 P.2d 843; State v. DeGroat, 1914, 259 Mo. 364, 168 S.W. 702; State v. We......
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Haley v. State
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