Meno v. State
| Decision Date | 02 February 1912 |
| Citation | 83 A. 759,117 Md. 435 |
| Parties | MENO v. STATE. |
| Court | Maryland Court of Appeals |
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.
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 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 A. 355, 56 L. R. A. 353, 84 Am. St. Rep. 506, and Hawkins v. State, 98 Md. 355, 57 A. 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, 810; Smartt v. State, 112 Tenn. 539, 80 S.W. 586; Watson v. State, 9 Tex. App. 237; People v. Vedder, 98 N.Y. 630.
A further objection was made to the admissibility of the dying declaration upon the ground that Nellie Robinson did not possess sufficient understanding at the time when the declaration was made to entitle it to any probative force. The evidence upon this point given by the physicians is conflicting. Dr. Shields, who was in attendance upon the girl, states her condition and what she did, the manner in which she replied to questions, but does not express any opinion whatever as to her mental condition at the time. Dr. Mace and Dr. Steele were both examined as experts, they not having attended the deceased woman, and they differ quite radically as to her probable mental condition at the time. It was therefore proper that the jury should pass upon this, as upon the other matters of fact which were involved in the trial of the case, and no error therefore can be imputed to the court for its rulings upon the tenth and twentieth exceptions.
The first, fourth, fifth, ninth, fifteenth, sixteenth seventeenth, eighteenth, and nineteenth bills of exception were all reserved to rulings of the court upon attempts to introduce into evidence testimony which would tend to show that the deceased girl had had improper relations with another man or other men, and thus negative an inference of motive upon the part of this traverser for the perpetration of the abortion. The court uniformly refused to admit all testimony of this character as being immaterial to the issue before the jury. The question to be determined in the case was not the unchastity of the girl with any other man or men, but whether this traverser had committed an abortion upon her. And this he might perfectly well have done, no matter who was the father of her child, and even if she had led a notoriously improper life. The introduction of the evidence could only have tended to raise an immaterial and collateral issue, and so divert the attention of the jury from the real question involved. Much reliance for the admissibility of this evidence was placed upon the decision in the case of Dunn v. People, 29 N.Y. 526, 86 Am. Dec. 319, in which case evidence of such a character was admitted; but it was admitted in that case because of contradictory statements made by the prosecuting witness as to the paternity of her child, and the purpose of it was not to establish the paternity, or motive for the offense, or the lack of such motive, but for the purpose of discrediting the evidence of the prosecuting witness, and in the separate opinion filed by Ingraham, J., in that case he said: "Evidence to prove who was the father of the child can scarcely be said to be material to prove that the prisoner had been guilty of the crime charged, viz., aiding or advising the producing of an abortion." The testimony sought to be elicited was not the general character of the deceased girl for lewdness, but her conduct with a particular man, and it was therefore analogous to the rule laid down in Shartzer v. State, 63 Md. 149, 52 Am. Rep. 501, and ...
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