Kraut v. State

• Decision Date: 21 June 1938
• Citation: 280 N.W. 327,228 Wis. 386
• Parties: KRAUT v. STATE.
• Court: Wisconsin Supreme Court

228 Wis. 386

280 N.W. 327

KRAUT

v.STATE.

Supreme Court of Wisconsin.

June 21, 1938.

Writ of Error to the Circuit Court for Grant County; S. E. Smalley, Judge.

Judgment affirmed.

The plaintiff in error, Elgie Kraut, hereinafter referred to as the defendant, was charged in the information with having: “On the 8th day of March, in the year 1937, at said county, Elgie Kraut did wilfully and feloniously employ upon the body and womb of Dorothy Holzinger, she being then and there pregnant with a child, certain instruments and other means, with intent thereby then and there wilfully and feloniously to destroy such unborn child, the same not being necessary to preserve the life of such mother, the said Dorothy Holzinger, and the same not having been advised by two physicians to be necessary for the purpose of preserving the life of said mother, the said Dorothy Holzinger, by means whereof the death of said Dorothy Holzinger was produced and whereby the said Elgie Kraut did on the 24th day of March, 1937, feloniously kill and slay the said Dorothy Holzinger, contrary to the provisions of Section 340.16 of the Wisconsin Statutes for 1935 and against the peace and dignity of the State of Wisconsin.”

Upon the trial, the jury found the defendant guilty as charged, whereupon, he was sentenced to imprisonment at hard labor in the state prison at Waupun for a general indeterminate term of not less than four years nor more than four years and one month. He brings the writ to review the record, which was filed in this court on December 27, 1937. The material facts will be stated in the opinion.Geo. B. Clementson, of Lancaster, and Graves & Earll, of Prairie du Chien, for plaintiff in error.

Orland S. Loomis, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Richard W. Orton, Dist. Atty., of Lancaster, for the State.

MARTIN, Justice.

Dorothy Holzinger, eighteen years old, started keeping company with one Monroe Sietz, a young farm hand, about June 13, 1936. In the fall, in October or November, Monroe and Dorothy had sexual intercourse at various times. These acts of intercourse continued through the following two months and resulted in Dorothy becoming pregnant in the month of December or January. Her pregnancy is undisputed and is admitted by the testimony of the defendant. Dorothy told Monroe that she was pregnant the latter part of January, 1937. She and Monroe talked about having an abortion performed, about going to see the defendant for that purpose and about raising the money for the operation. Monroe went to the defendant's office in the city of Lancaster, on the evening of February 22, 1937. At that time, he was not acquainted with the defendant, and upon his arrival at defendant's office, defendant was engaged at a meeting, there being eight or ten men in his office. Defendant took Monroe into his inner office and asked him what his trouble was. Monroe told him that he was in trouble with a girl and wanted to know what he could do to get her out of trouble. Defendant asked for the girl's name and about her folks, where they lived and what the girl was doing. He then asked how far along she was in pregnancy. Monroe replied about six weeks. There is a conflict in the testimony as to what was said on this occasion. Monroe testified that defendant said: “There is only one thing we can do, he said, and that will cost you $35.” Monroe further testified that he asked defendant if that had to be in cash before the operation, and defendant said: “Yes.” Monroe testified that he asked defendant if it would be all right to wait another week, that he would try and raise the money, to which defendant replied he guessed it would be. Defendant admits that Monroe called at his office on the evening of February 22nd, that he took him into the inner office, that Monroe said to him that he had a girl that he had been going with by the name of Dorothy Holzinger in trouble, feared he had her pregnant, that Monroe then wanted to know if he couldn't do something about it for him. “I said I didn't care to handle those kind of cases and did not, that I was busy in attending a meeting in the outer office. I did not care to discuss the matter with him any further. He left and I told him perhaps he could come up on some future date if he wished and we would discuss the matter more thoroughly; and then he left.”

It is admitted that Monroe called at defendant's office on the evening of March 1st. Monroe testified that on this occasion, his brother Kenneth and Dorothy accompanied him in his car to the defendant's office, but that they remained in the car while he was in the defendant's office; that defendant on this occasion did not recognize Monroe and again asked him his name and what he wanted. Monroe then said that he had been there the week before, referred to the conversation had and told defendant he had not been able to raise the money and asked defendant whether it would be all right to wait another week. Defendant again inquired how far along the girl was in her pregnancy, and defendant said: “He guessed it would be all right.” It appears that Monroe next saw Dorothy on the evening of March 4th or 5th, and had a conversation with her about raising the money to pay defendant. They finally decided that Dorothy should see her sister the following Saturday and ask her sister for the money. It appears that Dorothy did not see her sister on Saturday, but on Sunday evening, March 7th, Dorothy told Monroe that she had got $30 from her sister and that he would have to get the other five.

Concerning Monroe's call on the evening of March 1st, defendant testified:

“On the evening of March 1st, 1937, he again came to my office and said that he came up on the same mission that he had before with the exception that he had been giving Dorothy-that he had obtained some drugs and was giving them to her, had given them to her to take, and he feared he was getting her-that she was getting in bad shape; and wanted to know if I wouldn't treat her or examine her if he brought her up. I said I did not care to have anything to do with these particular kind of cases and he said, ‘Well, we will have to have somebody take care of her.’ ‘Well,’ I said, ‘You are at liberty to go wherever you wish.’ ‘Well,’ he said, ‘How much would it cost to have it?’ ‘Well,’ I said ‘Who is paying the bill on this?’ And he said he was. I said, ‘Have you any money?’ He said he didn't. I said, ‘In view of the fact that this is in the nature of a confinement case and the usual fee is $35.00, I will accept that amount for taking care of this girl.”’

On Monday evening, March 8th, Monroe took Dorothy to the defendant's office. Dorothy gave Monroe the $30 she had borrowed from her sister. Monroe testified that he first went up alone to the defendant's office and asked defendant if it would be all right to bring the girl up; that defendant then asked Monroe if he had raised the money, also inquired as to what the girl was doing and as to where she was then living; that defendant then wanted to know how she would get by without her folks finding out. Monroe said she wasn't staying at home now; that she was living with her grandmother and was working at the court house. Defendant inquired as to the nature of the work and as to whether she was standing up very much. Monroe told defendant that Dorothy had to sit down most of the time doing her work. Defendant then told Monroe to bring Dorothy up to his office. Monroe was asked:

“Q. What happened then? A. Well, he was in his inner office again. He came out in a short time and spoke to Dorothy and she spoke to him. Then she went into the inner office, and then I gave him the $35.00. He said, ‘Well, you won't want to stay up here will you?’ I said, ‘No, I guess not.’ Then I asked him how long it would take him. He said maybe half or three-quarters of an hour because he had to sterilize some instruments first. I said, ‘All right, tell Dorothy that I will be down to the car waiting for her.’ So I went down to the car.”

Defendant testified that Dorothy called at his office late in the afternoon on March 8th, and told him that she was the girl that Monroe Sietz had told him about previously, and said she feared she was getting in such shape that she would have to have some assistance; that she was flowing intermittently and had some intermittent pains.

“I said, ‘The usual arrangements have not been made here, Dorothy, and you had better get hold of your boy friend as soon as you can and both of you come up here and see me.”’

As to the call on the evening of March 8th, defendant testified: “Monroe Sietz came to my office and said that he had Dorothy down in the car and would bring her up to see me. He brought her up to the outer office. I spoke to them, called them by name, and took them into the inner office. He then paid me the usual fee that I requested. I said, ‘Now, it will take a little time for me to make this examination, as I must sterilize some instruments purposely to make the examination.’ I then put a bi-valve speculum and a pair of dressing forceps in the sterilizer and boiled them. In the meantime I inquired from her as to how she was feeling, and she said she wasn't feeling very good, was having some pain, quite a lot of pain, flowing some. She said she lived with her folks in South Lancaster. I took her temperature, which was normal and her pulse was normal. I then placed her on the examining table, felt over the lower abdomen, and found the uterus was contracting,-contracted down, rather tensely; and there wasn't any degree of tenderness, some pain on pressure. I then placed her in position where I could make a vaginal examination, and got the previously sterilized speculum and dressing forceps. On first inspection I found she was wearing a cloth or commonly perineal pad or Kotex which seemed to be and was fairly well soaked with blood. There was some blood of course exuding or flowing from the vagina. I then...