People v. Bradfield

• Decision Date: 05 January 1942
• Docket Number: No. 92.,92.
• Citation: 300 Mich. 303,1 N.W.2d 550
• Parties: PEOPLE v. BRADFIELD.
• Court: Michigan Supreme Court

300 Mich. 303

1 N.W.2d 550

PEOPLE

v.BRADFIELD.

No. 92.

Supreme Court of Michigan.

Jan. 5, 1942.

John D. Bradfield was convicted of manslaughter by abortion, and he appeals.

Affirmed.

CHANDLER, C. J. and WIEST, J., dissenting.Appeal from Circuit Court, Ingham County; Leland W. Carr, judge.

Argued before the Entire Bench.

Linsey, Shivel, Phelps & Vander Wal, of Grand Rapids, and Pierce, Planck & Ramsey, of Lansing, for appellant.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., and Richard B. Foster, Pros. Atty., of Lansing, for the People.

BOYLES, Justice.

Defendant, a practicing physician, appeals from a conviction and sentence for manslaughter by abortion. Act No. 328, Pub.Acts 1931, chap. 3, § 14, Stat.Ann. § 28.204. The only question raised is as to the admissibility of an alleged dying declaration or, more specifically, whether there was sufficient evidence to submit to the jury the question of the belief of the deceased declarant in the imminence of death.

The record establishes that during the latter part of November, 1940, a Mr. and Mrs. Hunt, residents of Lansing, went to see defendant in Portland, and made arrangements for him to procure a miscarriage; that an appointment was made and at the appointed time, Monday, December 2, 1940, Mr. and Mrs. Hunt and her married sister went to the doctor's office in Portland. After all other patients had left, Mrs. Hunt was taken into an operating room adjoining the room where Mr. Hunt and the sister remained seated but in their hearing. The unpleasant details of the operation were brought out at length in the testimony of Mr. Hunt and his wife's sister. Later, the same evening, Mrs. Hunt returned to the home of her sister in Lansing, went to bed, and, on Wednesday, two days later, a miscarriage occurred. The patient grew worse and, on Friday, a physician was called, and Mrs. Hunt was removed to a hospital where she died three days later. An autopsy revealed that an operation by instruments had procured a miscarriage.

Defendant testified in his own behalf and admitted the truth of the essential facts, including the use of instruments, but denied performing an operation to procure an abortion.

Without the dying declaration, the record clearly leaves no doubt as to the guilt of the defendant.

The dying declaration consists of statements, alleged to have been made by Mrs. Hunt to her mother, in the hospital at about eleven o'clock on the day before her death. At that time Mrs. Hunt was very ill. The testimony showed:

‘She was throwing herself first one side and then to the other side of the bed and apparently was in considerable pain and very short of breath.’

In answer to a question as to what Mrs. Hunt said on that occasion her mother testified:

‘Well, she said she wanted to confess to me that she could not die without asking me to forgive her.’

At the request of counsel for defendant, in the absence of the jury, this witness was further questioned as to the circumstances under which the alleged dying declaration was made. In the absence of the jury she testified as follows:

‘Mr. Foster: It is your testimony at this time, is it, however, is it not, that on the occasion that you have referred to, and in which you have fixed the time as approximately 11 o'clock prior to her death your daughter made a statement to you, I cannot die without asking you to forgive me, or words to that effect? A. Yes, sir. * * *

‘The Court: Were those her words? A. Yes, sir.

‘The Court: As you now recall them? A. Yes.

‘The Court: About what time in the day did she make that statement? A. I think about 11 o'clock.

‘The Court: And did she follow that immediately with the statement with referenceto this alleged illegal operation? A. Yes, sir, at the same time when I went in the room where she was alone.

‘The Court: Is there any question in your mind about her having used those words, that she could not die without confessing? A. That is just what she said, if I am permitted to use the words, she said, ‘Mama, I cannot die without confessing to you what I have done.’

‘The Court: Very well. I think, gentlemen, that we will have to receive the testimony. You can offer your copy of the testimony then and we will submit it to the jury with the usual instructions.

‘Mr. Pierce: May I invite the Court's attention to the question and answer on page 105 in connection with the interrogation by the Court which has just taken place?

‘The Court: Well, I realize that we have the testimony that the witness has given here on this record and I appreciate the fact that you are entitled to offer impeaching proof, but I think we must receive this evidence, subject to your objection, and leave it to the jury to say whether the statements are qualified as a dying declaration.’

On resuming the trial before the jury, the court announced: ‘The testimony will be received. It will be a question for the jury to weigh the statements made under a sense of imminent death or a feeling of imminent death.’

The same witness was then again asked, in the presence of the jury, what her daughter had said to her on this occasion, and she testified before the jury as follows:

‘The first thing she said was, she asked me if her husband had told me what she told me and I told her he had, and then she asked me if I would forgive her and I said yes, and then she said that if anything happened, and I said, what did you do, and she said she had a criminal operation, and I said, what had she done and she said that she had had a criminal operation, and I asked her who did it. She said, Dr. Bradfield from Portland.

‘Q. At the risk of repetition, because I am unable to remember whether these questions were asked you when the jury was present or when they were out of the room, I want to call your attention to a little earlier in the evening when you were in your daughter's room, together with one of your sons, the son that lives at home, and ask you if anything was said by your son about...