Palmer v. People

• Decision Date: 06 March 1967
• Docket Number: No. 21913,21913
• Citation: Palmer v. People, 424 P.2d 766, 162 Colo. 92 (Colo. 1967)
• Parties: Lawson F. PALMER, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 766

424 P.2d 766

162 Colo. 92

Lawson F. PALMER, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 21913.

Supreme Court of Colorado, En Banc.

March 6, 1967.

Richard E. Hartman, Eugene Deikman, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., James F. Pamp, Asst. Atty. Gen., for defendant in error.

SUTTON, Justice.

Lawson Palmer, plaintiff in error, was charged with having procured an unlawful abortion and with conspiracy to procure an abortion. He will be referred to herein by name or as the defendant. Palmer pleaded not guilty and not guilty by reason of insanity to both charges. The crimes allegedly occurred on January 29, 1962, but there was considerable delay in bringing Palmer to trial due to reasons not connected with the legal proceedings here. See Palmer v. District Court, 156 Colo. 284, 398 P.2d 435, 11 A.L.R.3rd 1380 (1965). Finally, defendant was tried in February, 1965, and convicted by a jury of the charge of procuring an abortion. Defendant was then sentenced to a term in the state penitentiary. The charge of conspiracy had been dismissed at the close of the prosecution's case and the People assign crosserror in that regard. The common thread running through Palmer's defense is that although he produced the abortion he was motivated by 'insane delusions of altruism making him helpless not to aid Miss _ _ under the circumstances.'

Palmer urges five grounds for reversal on writ of error:

(1) A failure to instruct the jury specifically that neither hands nor fingers constitute an 'instrument' under the statute which defines the crime of unlawful abortion.

(2) A failure to instruct the jury that certain testimony, i.e., that of Jerry Golden, allegedly related solely to the charge of conspiracy and should be disregarded in its entirety.

(3) The admission of testimony as to defendant's sanity of unendorsed witnesses, Doctors Cohen and Hilton.

(4) The failure to strike the entire testimony of psychiatrist Dr. Cohen since he purportedly did not apply the legal test of insanity in reaching his conclusions as to Palmer's sanity, and because he did not know what crime the defendant was charged with. And,

(5) The purported failure to preserve the original statement of the prosecuting witness in compliance with Colo.R. 16(b) and (c).

The evidence shows that on January 29, 1962, the prosecuting witness, who was about three months pregnant, and one Jerry Golden went to the Kenmark Grill in Denver and there met with a woman who was identified only as 'Rose.' The victim next testified as follows: Rose took her to the Glenarm Clinic where Dr. Palmer, then a licensed Osteopath, took her to an examining room and placed her on an examination table. He then showed her a long-handled instrument with short cutting blades and some gauze wet with a substance which smelled like iodine. He told her that he would cut her cervix and insert the gauze. An insertion of some object was then made, although the witness did not see what it was; however, she felt a sharp pain. Within 48 hours she experienced a miscarriage and continued to hemorrhage for approximately three weeks at which time she consulted her family physician and was treated in a hospital. Her physician testified that she had been pregnant and had miscarried but that her cervix had not been cut.

A great deal of the evidence concerned Dr. Palmer's lengthy history of mental disturbance, though he did not testify at the trial. Two expert doctors concluded that, though disturbed, Palmer was legally sane on the date of the alleged crime; another one, however, testified that he was legally insane. As above noted, by the jury's verdict of guilty, he was found to be sane. There was no testimony to controvert the above events concerning the abortion or the events leading up to it.

Palmer was charged under C.R.S. '53, 40--2--23 which reads in pertinent part:

'* * * every person who shall administer, or cause to be administered, or taken, any such poison, substance or liquid, or shall use, or cause to be used, any instrument of whatsoever kind, with the intention to procure the miscarriage of any woman then being with child, * * *.'

Following the People's case, the defendant moved for a judgment of acquittal as to the abortion count asserting that there was no evidence of anything being used other than his hands and fingers to start the aborting process; however the only evidence to that effect was hearsay testified to by defendant's psychiatrist. Opposed to that is the victim's testimony which could reasonably lead to the conclusion that the defendant had actually used the metal instrument in question. Obviously the jury could have concluded that the metal instrument with the gauze on it was in fact the object used to procure the abortion. And this is so even though it is also urged that the long-handled instrument was not used to cut the cervix but only to insert the gauze packing afterwards. In any event, adequate circumstantial evidence exists here to sustain the conviction of procuring an illegal abortion.

At this time we are constrained to comment on the defendant's premise which ignores the victim's testimony of the use of the metal instrument, whereby he asserts that hands and fingers are not included in the words 'any instrument of whatsoever kind,' in the statute. He urges that his motion to dismiss should have been granted or that the jury at least should have been instructed on such a theory. He cites as authority for this proposition the case of Polly v. People, 107 Colo. 6, 108 P.2d 220 (1940).

In Polly we held the giving of an instruction to be error which included the following language:

'You are instructed that an instrument, as referred to in the information and these instructions, is Any object which is used for the purpose of causing an abortion or miscarriage.' (Emphasis added.)

We there noted that to define instrument as 'any object' broadened the meaning of the statute and was therefore erroneous. Such is not the case here with Instruction No. 14 which reads as follows:

'The word 'instrument' as used in the previous instruction defining unlawful abortion, means an Artificial object, by means of which any work is performed or result is effected; A tool, a utensil, an implement.' (Emphasis added.)

This Instruction, by its very terms, might be said to exclude hands and fingers and if so, it would be more favorable to the defendant than the exact wording of the statute. A defendant cannot complain of an instruction which is more favorable to him than the strict wording of a statute. We do not limit the instruction to that interpretation, however, because the term 'any instrument' as used in the abortion statute is not limited to a detached physical object. The legislative purpose here was to prevent abortions other than for lawful purposes or by natural causes. Thus, anything foreign to the female's body which is unlawfully inserted, even fingers or hands, are instruments within the terms of the statute. In so far as Polly, supra, is in conflict with this view, it is expressly overruled. The better view is that the word 'instrument,' as used in an abortion statute, is not used in a narrow or technical sense but is broad enough to include any illegal means by which an external force is applied to produce a miscarriage. E.g., Wilson v. State, 36 Okl.Crim. 148, 252 P. 1106 (1927), where an allegation in an information charging the procuring of an abortion by means of An instrument was held to be sufficiently met by proof of the use of a finger for that purpose. The court there stated that '* * * the statute should not be construed too narrowly, but should be considered in the light of its purpose, which is to prevent practitioners of medicine from performing abortions by administering or prescribing drugs or other substances, or by applying external force to the womb or generative organs to destroy or cause an expulsion of the fetus * * *.' To the same effect that fingers used to cause an abortion are an 'instrument' within the meaning of such a statute, see Shaw v. State, 73 Tex.Cr.R. 337, 165 S.W. 930 (1914).

Defendant asserts that it was error not to strike the entire testimony of Jerry Golden which he asserts was introduced only as to the stricken conspiracy charge. The contention is without merit. This testimony was introduced at least partially to rebut the alleged insanity, and to show that money was paid over; it was also introduced to corroborate the statement of the prosecuting witness as to how she got to Palmer's office. Golden's acts can also be labeled as part of the res gestae since this was a connected series of events. In any event, the effect of his testimony was limited when the jury was properly instructed that it was to consider Only the charge of unlawful abortion.

As to Palmer's contention that it was error to allow the expert witnesses, Dr. Cohen and Dr. Hilton, to testify since the prosecution had failed to endorse these witnesses--we also find no merit. The record discloses that the testimony of these witnesses related solely to the mental state of the defendant and was presented on rebuttal to defendant's psychiatrist-witness, a Dr. Hartlaub. We have held that it is not necessary for the prosecution...