Montgomery v. People

• Decision Date: 18 August 1947
• Docket Number: 15737.
• Citation: 117 Colo. 118,184 P.2d 480
• Parties: MONTGOMERY v. PEOPLE.
• Court: Colorado Supreme Court

184 P.2d 480

117 Colo. 118

MONTGOMERY v. PEOPLE.

No. 15737.

Supreme Court of Colorado, en Banc.

August 18, 1947

Rehearing Denied Sept. 8, 1947.

Error to District Court, City and County of Denver; Joseph E. Cook Judge.

A. H Montgomery was convicted under all three counts of information charging administering drugs and using instruments on body of a pregnant female with intent to procure her miscarriage, unlawful possession of instruments for procuring abortions, and unlawful possession of drugs and medicines for procuring abortions, and he brings error.

Judgment affirmed.

Instruction stating material allegations as affecting count of information charging the administering of drugs and using instruments on body of a pregnant female with intent to procure her miscarriage, objected to on ground that the instruction was not the law, that it was a departure from the information, that instruction was an argument on part of court in favor of prosecution, and did not conform to the proof and amounted to a direction of verdict of guilty, was not prejudicial.

F. E. Dickerson, William F. Dwyer, and Walter F O'Brien, Jr., all of Denver, for plaintiff in error.

H. Lawrence Hinkley, Atty. Gen., Duke W. Dunbar, Deputy Atty. Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.

ALTER Justice.

A. H. Montgomery, a licensed chiropractor, was charged in a three-court information with: 1. Administering drugs and using instruments on the body of a pregnant female with intent to procure her miscarriage. 2. Unlawful possession of instruments for procuring abortions. 3. Unlawful possession of drugs and medicines for procuring abortions. Upon trial to a jury, verdicts of guilty on all three counts were returned. Judgments were pronounced on the verdicts, to review which this cause is brought here by writ of error.

The record discloses that Mrs. Y was a married woman and the mother of two small children. She became pregnant the latter part of June, 1945, while her husband was in Denver on leave from the Navy, and, for reasons sufficient to her, determined upon an abortion.

She communicated with the defendant August 6, 1945, and thereafter many meetings and conferences were had between Mrs. Y and defendant, in all of which the topic of discussion was abortions and how best to accomplish them. As a result, defendant agreed to bring about the abortion. He prescribed drugs for the purpose of producing a miscarriage, which, however, were taken without results. He then definitely arranged to bring about the abortion in defendant's bedroom on August 20, 1945, and he demanded and received from Mrs. Y the sum of $150 for his services in connection therewith. During the meetings and conferences between defendant and Mrs. Y, defendant's actions, conduct, demands and language all indicated a licentious--as distinguished from a professional--attitude. It is unnecessary to here detail defendant's demands made as a consideration for bringing about the abortion; the record stamps him as a moral leper. He was arrested in Mrs. Y's bedroom on August 20, 1945, where were found instruments used in performing abortions, and medicines and drugs which are likewise administered in such cases and which defendant had prescribed.

There are thirty-two assignments of error which defendant has consolidated and discussed under four general heads: 1. Undue limitation of cross-examination. 2. Incomplete evidence. 3. Instructions erroneously refused and erroneous instructions. 4. Insufficiency of the evidence. We shall discuss the assignments in this order.

1. Defendant's counsel assert that Mr. Dickerson, who alone represented defendant below, was unduly restricted in his cross-examination. They cite the cross-examination of Mrs. Y concerning people's exhibits A to E, inclusive, as a specific instance of undue restriction. These exhibits had been identified but not yet offered in evidence at the time of cross-examination. Defendant's counsel desired to cross-examine Mrs. Y with reference to them. Exhibit A was a purse in which was a bottle containing white pills and others in yellow cellophane, both trade-marked 'HR.' Exhibit B consisted of a dark fluid in a bottle; exhibit C was a metal piece with a rubber hose attached thereto; exhibit D was a grease gun, and exhibit E was a speculum. All of these exhibits were found in Mrs. Y's bedroom and while defendant was there present for the purpose of procuring the abortion. At the time exhibits A to E, inclusive, were identified, defendant's counsel asked that they be offered so as to afford him possession thereof for the purpose of cross-examination. This request was refused, but the trial court assured counsel that when the exhibits were offered in evidence he would have ample opportunity for cross-examination thereon. The exhibits were later offered in evidence, at which time defendant's attorney stated.

'Mr. Dickerson: If your Honor please, there is no identification of the exhibits. Exhibit E is objected to, having no connection with the defendant whatsoever, Dr. A. H. Montgomery, not having been shown to have ever been in his possession at any time. Likewise Exhibit C--no connection whatever with Dr. Montgomery. There is no objection to Exhibit A, this purse. There is no objection to Exhibit B, this phial. There is no objection also as to Exhibit D. There is no evidence showing Dr. Montgomery had anything to do with them at any time.

'The Court: Overruled, admitted.'

It is contended by defendant's counsel that Mr. Dickerson, by being restricted in his cross-examination as to the exhibits, was prevented from showing that Mrs. Y herself had purchased the noxious drugs. We are unable to agree with counsel that Mr. Dickerson was in any wise prevented from, or restricted in, cross-examination in reference to exhibits A to E, inclusive. The record discloses no proper objection or exception to the admission of the exhibits; no request for further cross-examination of Mrs. Y after the exhibits were offered--in fact defendant's counsel did not avail himself of the opportunity offered, him by the trial court for further cross-examination by Mrs. Y when the exhibits were offered in evidence. We perceive no error under the recorded procedure.

There are a number of other instances concerning which defendant's counsel contend that the trial court unduly restricted the right of cross-examination; that in each of these the cross-examination was upon matters wholly immaterial to any issue in the case, and, consequently, no error resulted. No objection or exception having been made or saved to the admission in evidence of the exhibits, we are under no obligation to consider and determine error assigned in connection therewith.

The right of cross-examination unquestionably is a valuable right, and to deprive one thereof may result in prejudicial error. It is equally true--and all the Colorado decisions support the rule--that one may not attack the credibility of a witness on either direct or cross-examination upon an immaterial matter. King v. People, 64 Colo. 398, 172 P. 8; O'Chiato v. People, 73 Colo. 192, 214 P. 404; Gizewski v. People, 78 Colo. 123, 239 P. 1026. Here, in each instance, the questions propounded by defendant's counsel on cross-examination were upon matters wholly immaterial to any issue in the case, and the trial court committed no error in foreclosing defendant's cross-examination concerning such matters.

No objection or exception having been made or saved to the admission in evidence of the exhibits, we do not consider and determine alleged error assigned in connection therewith. Disregarding any technicality which may preclude a consideration of assigned errors, we hold that the exhibits were properly identified, were clearly admissible in evidence, and that defendant was not unduly restricted in his right of cross-examination pertaining to the same.

2. Defendant's counsel contend, under the consolidated assignment, 'incomplete evidence,' that there is no competent testimony concerning the instruments (exhibits C, D and E) nor any competent testimony concerning the drugs (exhibits A and B), and, therefore, that the evidence is insufficient to warrant a conviction on any one of the three counts of the information. It will be remembered that exhibit A was a small purse in which were some drugs, and that exhibit B was a bottle containing some liquid. The contents of exhibits A and B were, according to the undisputed testimony of Mrs. Y, given to her by defendant in connection with, and for the purpose of, producing a miscarriage. Mrs. Y had gone to defendant for the avowed purpose of having an operation to produce an abortion preformed. Defendant had agreed to preform the operation upon the payment to him of $150 and Mrs. Y's compliance with other demands. The undisputed testimony is that the contents of exhibits A and B were furnished Mrs. Y by defendant and were taken by her under his directions and upon his assurance that they would accomplish the desired result. This evidence is undisputed.

One of the people's witnesses was a graduate pharmacist registered in Colorado for eighteen years, and who, at the time of the trial, engaged in pharmacy, and previously had been an investigator in the district attorney's office for fifteen years. He identified exhibits A and B by trademark, by superficial examination, and testified to some of the uses and purposes for which these drugs were adapted. He made no chemical analysis of the contents of exhibits A and B, and it is the contention of counsel for defendant that unless a chemical analysis was made of these exhibits no witness was competent to testify as to their constituents and ingredients. The witness had had years of...