Mcdonald v. State
| Decision Date | 02 November 1915 |
| Citation | 70 So. 24,70 Fla. 250 |
| Parties | McDONALD v. STATE. |
| Court | Florida Supreme Court |
Error to Criminal Court of Record, Hillsborough County; Lee J Gibson, Judge.
E McDonald was convicted of intending to procure miscarriage of a woman, and brings error. Affirmed.
Syllabus by the Court
A confession voluntarily made by the defendant while under arrest, to the officer having him in custody, is not rendered inadmissible merely because made to the officer who arrested him or has him in custody. Such a confession is extrajudicial, and distinguished from the statements made by an accused person on oath before a coroner, grand jury, or committing magistrate investigating the case.
Upon the trial of a person for intending to procure miscarriage of a woman, although it appears that the name of the woman upon whom the abortion was intended to be performed, as alleged in the information, was a fictitious one, but that she was known by such name to those with whom she had dealings and to whom she had gone for relief and treatment, there is no variance.
The authority of the trial court, without notice to plaintiff in error, upon a nunc pro tunc order, to correct the minutes of the court to show the presence of the accused during the trial, after writ of error has issued, is questioned.
COUNSEL Macfarlane & Chancey, of Tampa, for plaintiff in error.
T. F West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.
The plaintiff in error was convicted in the criminal court of record for Hillsborough county upon an information charging her with the intent to procure a miscarriage of one Mary Martin by using certain instruments and means unknown to the county solicitor.
The plaintiff in error, Mrs. McDonald, occupied a house in Tampa. One night in July, 1914, Dr. L. J. Efird, in company with a police officer named Hill, went to the house occupied by Mrs McDonald. Dr. Efird went in the house alone, and asked Mrs. McDonald if there was a young woman patient in the house, calling her by name, and informing Mrs. McDonald that the girl was pregnant and was under his care, and that he wanted to find out where she was. Mrs. McDonald then told him there was no such person in the house. Thereupon the doctor left the house and reported the result of his visit to the chief of police, Mr. Woodward, who with the county solicitor, Dr. Stringer, and Cap. Rhodes, had followed Dr. Efird to the house. The entire party, with the exception of the officer who accompanied Dr. Efird, returned to the house, and after some objections by Mrs. McDonald went in, and went upstairs. There they found the young woman, called Mary Martin, about whom Dr. Efird had inquired of Mrs. McDonald. She was lying in bed in one of the rooms upstairs. Mrs. McDonald went into the room with these men, sat down on the bed, and said to the girl:
'Don't say a word; don't open your mouth; be careful what you say.'
Mrs. McDonald was then induced to leave the room, after being informed that the men who were with the doctors were the county solicitor, chief of police, and Lieut. Rhodes. She went into another room across the hall, followed by the chief of police and county solicitor, who went into the room with her. The two doctors, Efird and Stringer, were left in the room with Mary Martin and made an examination of her with her consent. They found that the 'uterus of the womb had been dilated, a rubber catheter pushed up in the womb, and up against this catheter was a lot of cotton that had evidently been soaked,' so that it could be packed tightly in the vagina. The girl was pregnant, and the substances found in the womb and vagina were sufficient to produce an abortion, so Dr. Efird testified both on direct and cross examination. A miscarriage did in fact follow. A bag of obstetrical instruments was found in the room occupied by the girl. Some of those instruments were designed for the purpose of dilating the mouth of a womb. The mouth of the girl's womb had been dilated in order to insert the catheter. Mrs. McDonald had lived in Tampa for five years, and had practiced midwifery since 1903. The instruments belonged to her. After the examination of the girl was completed, Mrs. McDonald made certain statements in the presence of the physicians, the solicitor, chief of police, and the police officer. In these statements, which were made voluntarily by her, without pressure or threats or promise of lenience, she admitted to the chief of police that the girl had come to her in trouble and wanted Mrs. McDonald 'to do something for her'; that she charged the girl $75, $25 of which was paid, and some jewelry turned over to her. She admitted using the instruments, and asked the physicians if 'it wasn't done properly.' To Dr. Eflrd Mrs. McDonald admitted that she placed the catheter and the cotton in the girl's womb and vagina, and pleaded with the solicitor not to have her prosecuted for it. She also agreed that the catheter and cotton should be removed, and requested that it be done. To Dr. Stringer she admitted doing the act, and said that she had been taught to do things properly, when asked by the doctor if she had observed surgical cleanliness; that she was to receive $75 for producing the abortion, $25 of which had been paid, and some jewelry taken as collateral. Up to this time the woman had not been arrested. She seemed to have been excited and somewhat alarmed, and talked freely about the matter.
Officer Hill remained at the house when the others had gone, for the purpose of taking Mrs. McDonald to town with him, when her other daughter, who was away and was expected soon to arrive, should come. According to the officer the woman was then under arrest. While sitting on the porch waiting for the daughter to come, the woman, worrying about her trouble, said that times were hard, she needed money, thought she would help the girl out of her trouble, all of which constituted her reason for committing the act. She admitted that she had received $25 for the work.
The defendant by her counsel objected to the reception in evidence of the statements and admissions made by her to these witnesses, upon the grounds that they were immaterial and irrelevant, that no sufficient predicate had been laid to justify the admission in evidence of the statements, and because at the time the statements were made the woman was 'surrounded by officers and by the county solicitor, and that she was not warned that any statements she might make would be used against her, that she was excited and crying, and was not warned of her rights in the premises.' These objections were overruled, and form the basis of the first, third, fourth, fifth, sixth, and seventh assignments of error, all of which are argued together.
The language used by this court in some opinions dealing with the admissibility in evidence of confessions made by an accused person under arrest seems to indicate that the view has obtained here that a confession of guilt, freely and voluntarily made by an accused person to an officer who has merely arrested such person, is not admissible in evidence at the trial of such person, unless it is clearly shown that the accused person was fully advised by the officer or some person in authority of such accused person's rights under the law. We think, however, that a careful review of the many decisions by this court upon the subject of the admissibility of confessions will show that no such view has been expressed.
The distinction has been drawn between judicial and extrajudicial confessions, and this court has invariably held that in cases where the confession offered in evidence could be classed as a judicial confession it was necessary to its admissibility that it be preceded by a warning or caution that the accused need not incriminate himself, and that his words might be used against him at the trial. In a recent and most excellent work, entitled 'Ruling Case Law,' the subject is exhaustively discussed. 1 R. C. L. 569.
In the case of McNish v. State, 47 Fla. 69, 36 So. 176, the court, speaking through Justice Shackleford, said:
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