McCaskill v. State

Decision Date03 November 1969
Docket NumberNo. 45492,45492
PartiesLuther W. McCASKILL v. STATE of Mississippi.
CourtMississippi Supreme Court

Semmes Luckett, Leon L. Porter, Jr., Clarksdale, for appellant.

A. F. Summer, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

INZER, Justice:

This is an appeal by Luther W. McCaskill, a medical doctor, who was indicted, tried and convicted in the Circuit Court of Coahoma County for the crime of murder under the provisions of Section 2223, Mississippi Code 1942 Annotated (Supp.1966). He was sentenced to life imprisonment in the State Penitentiary. We reverse and remand.

Since we are reversing and remanding this case for another trial, we will only detail so much of the evidence as is necessary to dispose of this appeal. The proof on behalf of the State established that the deceased, Imogene Flowers Hurt, a resident of Greenwood, Mississippi, died on December 11, 1967, at the clinic operated by appellant in Clarksdale, Mississippi. An autopsy performed five days later revealed that she died as a result of infection and hemorrhage from a laceration of the cervix which is the exit from the womb. It was the opinion of the doctor who performed the autopsy that the laceration was caused in the removal of a fetus from the womb. It was also his opinion that the abortion occurred at least twenty-four hours prior to the death and that it could have happened as long as ten to fourteen days before death. He found no evidence of occlusion of the heart.

It was also established that the deceased was informed by her family physician early in October that she was pregnant and that she left Greenwood on Thursday afternoon December 7, after telling her mother that she was going to Clarksdale to attend a wedding party. The following day she talked to her mother in a collect telephone call. Her mother did not hear from her on Saturday and on Sunday her mother placed a call to a number she found in her daughter's room. When the number was reached she was given another number to call and upon calling she reached Dr. McCaskill and asked to speak to her daughter. The doctor first said that she was not a patient there, but when Mrs. Flowers insisted that she wanted to talk to her daughter, he said wait a minute and he would check. Her daughter then answered the telephone and over the objection of appellant, Mrs. Flowers was allowed to testify that she asked her daughter if she was all right and that her daughter replied, 'yes, I am all right.' Then Mrs. Flowers asked her if she was sure and her daughter then said, 'yes, I am sure. You know that-of my pregnancy-and I am up here to the doctor getting something done about it.' Mrs. Flowers said she talked with Dr. McCaskill on Monday and he told her that her daughter was all right and would be home the following day. The next day she learned of her daughter's death.

Dr. McCaskill testified in his own behalf and denied he performed an abortion on the deceased. He said that he first saw the deceased on Saturday about 5 P.M. prior to her death on Monday. She told him that she had been pregnant and that a doctor in her area had performed an abortion on her. She gave the doctor a history of having had numerous pelvic infections. His examination of her at that time revealed that her blood pressure was high and that her temperature was elevated. She complained of pains in her stomach and when he touched her stomach he found it to be very tender. He said this indicated that she had a pelvic inflammatory disease. He also found that she was nervous and had palpitation of the heart. He treated her by giving dextrose and a combination of streptomycin any penicillin intravenously. After a few hours she was much improved and she left the clinic. He testified that he did not see her again until Monday afternoon about thirty minutes after he came to work. At that time he examined her in the presence of his nurse. He said she told him that she had been bleeding from the vagina and that his manual examination revealed that she had a ragged cervix and he felt what was probably a tear on the right side of the cervix. He found her heart to be very rapid and her blood pressure to be elevated. She was short of breath and was coughing frequently. He treated her as he had done on the previous occasion by giving her fluid intravenously. Shortly before she died she called him and told him that she was very warm and felt faint, and asked for water. She was short of breath and complained of pain in the chest area; she was restless and he gave her demerol for chest pain. She seemed to improve for a minute or two and her pulse became very irregular and she said she was smothering. She stopped breathing and he gave her adrenalin and mouth to mouth resuscitation in an effort to revive her. He testified that it was his opinion that her death was caused by a coronary occlusion. He denied that he talked with Mrs. Flowers on Sunday but admitted that she called him on Monday and that he told her that her daughter was all right and that she should be home the following day.

Appellant's assignment of errors is as follows:

(1) in permitting the indictment, trial and conviction of appellant under that provision of Section 2223 of the Code of 1942, Recompiled, which purports to make the death of a mother resulting from an illegal abortion the crime of murder, because said part of said section is unconstitutional, null and void because the amendatory act by which it was sought to icnorporate that change into the statute did not conform to constitutional requirements; (2) in granting the state's instructions which omitted the necessary qualification, since the case against appellant depended entirely upon circumstantial evidence, that the state's evidence must exclude every reasonable hypothesis consistent with appellant's innocence; (3) in permitting the introduction, over appellant's objections, of accusatory declarations made by deceased in a telephone conversation with her mother; (4) in denying appellant's several motions for a mistrial on account of prejudicial conduct on the part of the prosecuting attorney; and (5) in permitting the trial jury, over appellant's objections, to be chosen in a manner which denied appellant his constitutional rights.

Appellant contends that the part of Section 2223, Mississippi Code 1942 Annotated (1956), which purports to make the death of the mother resulting from an illegal abortion the crime of murder, is unconstitutional. His argument is based, as we understand it, on the proposition that Section 2223 prior to the enactment of Chapter 260, Laws of 1952, did not make the death of the mother a crime under the abortion statute. A person who caused the death of a mother by an illegal abortion could only be prosecuted for manslaughter under the provisions of Section 2221 or 2220. Section 2215, according to appellant, also made it certain that the death under such circumstances was not murder. Appellant urges that in order to amend Section 2223 to make the death resulting from an illegal abortion a murder, Mississippi Constitution, Section 61 (1890) requires that Sections 2221, 2220 and 2215 be amended by inserting them at length in the amendatory act. We find no merit in this contention. Chapter 260, Laws of 1952, specifically repealed the abortion statute which contained no provision relative to the death of a mother as a result of an illegal abortion. The statute enacted by Chapter 260, Laws of 1952, is complete within itself and it provides among other things:

* * * if the death of the mother results therefrom, the person procuring, causing or attempting to procure or cause the abortion or miscarriage shall be guilty of murder.

No mention was made of the manslaughter statutes under which previous prosecution was maintained for the death of a mother as a result of an abortion. These sections were amended by implication. This being true the question is, does Chapter 260 violate Section 61 of the Constitution of 1890. This section provides:

No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length.

In Hart v. Backstrom, 148 Miss. 13, 113 So. 898 (1927) in which it was contended that a statute violated Section 61, supra, this Court said:

In construing constitutional provisions, the courts should look to the history of the times and examine the state of things in existence when the Constitutional provision in question was adopted, in order to ascertain the mischief sought to be remedied. * * *

Cooley's Constitutional Limitations (7th Ed.) c. 6, pp. 214 to 216, inclusive, gives the historical background of constitutional provisions of other states substantially the same as Section 61 of our Constitution. The author discusses the evils existing in the process of legislation which were sought to be cured by such a constitutional provision, saying:

'The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effects, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the change made in the laws. An amendatory act which purported only to insert certain words, or to substitute one...

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