Heath v. State, 5506

• Decision Date: 19 October 1970
• Docket Number: No. 5506,5506
• Parties: Cecil B. HEATH, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 420

459 S.W.2d 420

249 Ark. 217

Cecil B. HEATH, Appellant, v. STATE of Arkansas, Appellee.

No. 5506.

Supreme Court of Arkansas.

Oct. 19, 1970.

DeLoss McKnight, Wynne, for appellant.

Joe Purcell, Atty. Gen., Mac Glover, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

This is an abortion case. Cecil B. Heath, appellant herein, was charged with the offense of attempting to produce an abortion by the use of a crochet needle and a catheter, and on a second trial was convicted, ¹ fined $500.00, and sentenced to imprisonment for a period of five years. From the judgment so entered, appellant brings this appeal. For reversal three main points are asserted, it first being alleged that the court erred in overruling appellant's motion to quash the evidence. It is contended under point two that the court should have directed a verdict for appellant at the close of the state's case, this contention being based on three sub-points, which will be subsequently discussed. Finally, it is asserted that the court erred in allowing the prosecuting attorney to cross-examine the appellant's witness, Betty Ann Heath, wife of appellant, concerning certain items allegedly located in the Heath premises.

The first point relates to the state's action in obtaining a search warrant for the purpose of searching appellant's home for certain items which are sometimes used in performing an abortion, this warrant being issued by the Municipal Court of Forrest City. Appellant attacks the affidavit, the warrant itself, and the authority, under Arkansas law, to issue a search warrant in this type of case. We see no need to discuss the arguments presented for the reason that none of the items seized by the officers under the authority of the search warrant were offered in evidence by the state. The only exhibits offered were the hospital records pertaining to the treatment of Mrs. Clara Snider, upon whom the attempted abortion was committed, and the apparatus which was used to induce the attempted abortion. It is not contended that these exhibits were obtained by an unlawful search or seizure. Accordingly, since the items obtained through the alleged unlawful search and seizure were not offered into evidence, no prejudice could have resulted, and the point is without merit. See Evans v. U.S., 8 Cir., 325 F.2d 596, and People v. Marsh, 58 Cal.2d 732, 26 Cal.Rptr. 300, 376 P.2d 300.

It is next asserted that the court erred in failing to direct a verdict at the conclusion of the state's case for the defendant for three reasons. The first argument is directed to appellant's contention that the state's prosecuting witness, Mrs. Clara Snider, being the party upon whom the abortion was attempted, and consenting that the act be done, was an accomplice, and that her testimony was not sufficiently corroborated. Appellant requested the jury be instructed that Mrs. Snider was an accomplice and that her evidence must be corroborated before appellant could be convicted. The court did not err in refusing to give this instruction, for under Arkansas law, Mrs. Snider was not an accomplice, and her testimony was sufficient, if believed by the jury, to support the conviction. This is clearly the general rule, and the few cases holding otherwise seem to be based on particular statutes. Our own statute, Section 41--303, Ark.Stats.Ann. (1969 Supp.) is directed toward the person who administers or prescribes medicine or drugs to any woman with child, with intent to produce an abortion, or to produce or attempt to produce an abortion by any other means. ² There is no mention of any penalty for the pregnant woman, and we have no case holding the person upon whom the abortion is performed to be a principal or an accessory, or in any other way, a particeps criminis. Arkansas has several abortion cases in which the person attempting the abortion was convicted largely on the testimony of the woman upon whom the act was performed or attempted, but the question of whether the prosecuting witness was an accomplice has never been raised, it evidently being accepted that she could not be considered in that category. See Burris v. State, 73 Ark. 453, 84 S.W. 723, Thompson v. State, 260 S.W. 723 (not reported in Arkansas). ³ We find no merit in appellant's argument and thus there is no need to discuss the matter of corroboration but, if it were otherwise, we might say in passing that we consider Mrs. Snider's evidence to have been sufficiently corroborated to have presented a jury question as to appellant's guilt or innocence.

It is next asserted that the evidence reflects that Mrs. Snider gave tainted testimony, in that her evidence had been coerced by police action. The prosecuting witness testified that she was interviewed by Sergeant Mitchell of the Arkansas State Police the day after entering the hospital and she admitted that she had told the officer that the attempted abortion occurred in Jonesboro. The record then reveals the following:

'Q. And let me ask you if either Sergeant Mitchell or some police officer did not advise you that you could be prosecuted as an accessory to the crime of abortion?

A. I don't know as it was said in those words.

Q. Well, was it intimated to you in any words?

A. It was explained to me that this type of thing should not have happened, and the person who did it should be prosecuted for it.

Q. But, you are not answering my question. I asked, did this police officer advise you or tell you you could be prosecuted as a party to an abortion?

A. Yes.

Q. Now, that is what I asked you, and the answer to that is yes?

A. Yes.

Q. And it was after this that you told them that Jerry Heath did this, is that correct?

A. Yes, I did.

Q. And it was also asked by this same investigator, 'Did not Mr. Heath do this? Didn't Jerry Heath do this?' They asked you that several times, didn't they?

A. Yes.

Q. And you told them no, isn't that correct?

A. Yes, I told them no because I didn't want anyone to know who had done it.

Q. But, after it was explained to you that you could be prosecuted for it, you said that it was Mr. Heath, is that correct?

A. They said it would go hard on me if I didn't tell who did it.'

In reading this evidence, it will be noted that the answers most relied upon by appellant are those wherein counsel, in vigorous cross-examination, stated the answer desired in the question, and the witness only replied 'yes'. It is true that counsel was entitled to ask these questions on cross-examination, and there was certainly nothing out of line in doing so. Still, it would appear, that under the circumstances of this case, 'yes' and 'no' answers are not nearly so persuasive as those answers in which the witness makes the statement herself or voluntarily elaborates. The answer 'It was explained to me that this type of thing should not have happened and the person who did it should be prosecuted for it' is in the words of the witness herself. The answers, of course, are somewhat contradictory, but at any rate, the testimony mentioned does not, as a matter of law, so taint the testimony that it was inadmissible. A similar case, though one in which the facts were much more favorable to appellant, was Scott v. State, 169 Ark. 326, 275 S.W. 667, where Scott was convicted of carnal abuse of a girl about fourteen years of age. The principal point for reversal was that the testimony of the girl was extorted from her by duress exercised by the trial judge and the prosecuting attorney, and that the court erred in permitting the witness under those circumstances to testify against appellant. The opinion, by Chief Justice McCulloch, sets out that the prosecuting witness was called by the state, and after a few preliminary questions, was told by the prosecuting attorney of the charge against appellant and directed to tell the jury just what happened. The witness made no answer, and was then told by the trial judge to tell what occurred. Still no answer was made, and after further unsuccessful urging, the girl was temporarily excused and another witness was called. The prosecuting witness was recalled but still made no answer to the questions propounded to her. Finally, the court said:

'Young lady, I am getting out of patience with you. I think it is as much stubbornness as anything else. Take your hands down from your face and answer the question.'

Her father was then directed to take her to the jury room to see if he could 'do anything with her'. The opinion then recites:

'After a short absence all of the persons named returned to the court room, and the attorney for appellant made objections to the introduction of the witness on the ground that duress was being used to force the witness to testify. This occurred during the afternoon, and the court announced that there would be an adjournment over until next morning, and stated to the witness that she would be expected to answer questions the next morning and tell the truth. On the next day the girl was recalled to the witness stand, and when the first question was propounded to her she announced that she was not going to prosecute appellant and gave the same answer to repeated questions. There was one question, however, which she answered in the negative, and that was the one propounded by the prosecuting attorney as to whether or not she had ever had sexual intercourse with appellant. She answered, 'No, sir'. The prosecuting attorney then asked her if her testimony before the grand jury was false, and she made no answer to that question. The court then directed the sheriff to take the witness to jail, and the jury was allowed to separate with the usual admonition not to have any conversation about the case. In the afternoon the girl was again called to the witness stand and answered the questions of the prosecuting attorney, narrating the circumstances under which the alleged crime was committed. She was cross-examined at length by appellant's counsel, and other witnesses...