Meno v. State

• Decision Date: 02 February 1912
• Parties: MENO v. STATE.
• Court: Maryland Court of Appeals

83 A. 759
117 Md. 435

MENO
v.
STATE.

Court of Appeals of Maryland.

Feb. 2, 1912.

Appeal from Circuit Court, Dorchester County; Robley D. Jones and E. Stanley Toadvin, Judges.

James Meno was convicted of causing the death of deceased by abortion, and he appeals. Reversed and remanded.

Argued before BOYD, C. J., and BRISCOE. PEARCE, BURKE, THOMAS, URNER, and STOCKBRIDGE, JJ.

Frederick H. Fletcher, for appellant.

V. Calvin Trice, State's Atty., and Edgar Allan Poe, Atty. Gen., for the State.

STOCKBRIDGE, J. The appellant in this case was indicted, tried, and convicted for having caused the death of Nellie Robinson by an abortion practiced upon her. The exceptions are 20 in number, though the points involved were considerably less, as exceptions

83 A. 760

were reserved to rulings of the court upon offers of evidence where the same legal proposition was involved in repeated tenders. The most important is the question of the admissibility of the dying declaration of the deceased which formed the basis of the tenth and twentieth exceptions.

What is necessary to render a dying declaration admissible has been so recently passed upon by this court in the cases of Worthington v. State, 92 Md. 222, 48 Atl. 355, 56 L. R. A. 353, 84 Am. St. Rep. 506, and Hawkins v. State, 98 Md. 355, 57 Atl. 27, as to make its repetition unnecessary.

The declaration in this case was made in Camden, N. J., to a detective of that city, at a time when Nellie Robinson was in the hospital, and but a few days before her death. She had been told by the doctor in attendance that she was going to die, and was at the time either unable to speak, or unwilling to do so, but communicated with those grouped about her bed by affirmative or negative inclinations of her head. After having been informed by the doctor of her condition, and impending death, she was asked by Carroll, the detective, "Do you realize that you are going to die?" And she shook her head, "Yes." This conversation apparently took place on the 19th of December, 1910, and she died on Sunday following, December 25th. The requisites for the admissibility of the dying declaration were complied with. The question of the amount of credence to be placed in it was a question for the jury.

It has been suggested in the brief of the appellant that it is not admissible, however, because, if an abortion had been practiced, the girl was an accomplice to its perpetration, and it was therefore the statement of an accomplice, upon which, unless corroborated, no conviction could be properly had. This argument is not supported by authorities. A woman on whom an abortion has been performed is regarded as a victim rather than an accomplice, and, even if she be deemed an accomplice, she is competent as a witness for the prosecution of the accused, and her evidence does not require corroboration when it establishes satisfactory proof of guilt, though in all such cases the credibility of it is to be passed upon by the jury under proper caution from the court, as to the amount of credence to be placed in it. Dunn v. People, 29 N. Y. 523, 86 Am. Dec. 319; State v. Smith, 99 Iowa, 26, 68 N. W. 428, 61 Am. St. Rep. 219; State v. Owens, 22 Minn. 238; State v. Pearce, 56 Minn. 226, 57 N. W. 652, 1065; Peoples v. Commonwealth, 87 Ky. 487, 9 S. W. 509...