People v. Davis
| Citation | 200 N.E. 334,362 Ill. 417 |
| Decision Date | 14 February 1936 |
| Docket Number | No. 22970.,22970. |
| Parties | PEOPLE v. DAVIS. |
| Court | Illinois Supreme Court |
Error to Criminal Court, Cook County; Grover C. Niemeyer, Judge.
Lou E. Davis was convicted for murder by means of abortion, and she brings error.
Judgment reversed and cause remanded for a new trial.
Cameron Latter and Peter Montague, both of Chicago (Thomas J. McCormick and Charles P. R. Macaulay, both of Chicago, of counsel), for plaintiff in error.
Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and A. B. Dennis, of Danville (Edward E. Wilson, Henry E. Seyfarth, John T. Gallagher, Richard H. Devine, and Martin Ward, all of Chicago, of counsel), for the People.
The defendant, Lou E. Davis, a regularly licensed physician and surgeon, was indicted in the criminal court of Cook county for the murder of Gertrude Gaesswitz by means of an abortion. She was found guilty by a jury and her punishment was fixed at fourteen years imprisonment in the penitentiary. Motions for a new trial and in arrest of judgment were made and denied. The defendant prosecutes this writ of error.
Louis Gaesswitz and Gertrude Gaesswitz, his wife, twenty-seven years of age, had been married for seven years and lived in the city of Chicago. She had given birth to three children, only one of whom was living. In the early part of January, 1934, Gaesswitz consulted Dr. R. N. Hutchison, their family physician, concerning his wife's condition. He informed the doctor that he feared she was pregnant, adding the she did not desire to have another child, but that he was opposed to interrupting the pregnancy. On this occasion it was arranged that Gaesswitz should send his wife to the doctor for an examination. On January 13, Mrs. Gaesswitz, unaccompanied, visited Dr. Hutchison at his office. He examined her, found that she had been pregnant for about two months, and advised her to avoid an operation. The next day Gaesswitz and his wife visited her father, Daniel W. Allen, and the latter mentioned the defendant, Dr. Davis. On January 19, six days after the examination by Dr. Hutchison, Mrs. Gaesswitz, again alone, consulted the defendant. Caesswitz accompanied his wife to the defendant's office on January 22. They made another visit to the defendant's office on January 24. The following Sunday, January 28, Mrs. Gaesswitz and her young daughter spent the day at her father's home, located seven or eight miles from the Gaesswitz apartment. Gaesswitz went hunting on that day and called for his family late in the evening. During the afternoon a sudden change in the weather had caused a drop in the temperature to zero. Gaesswitz and his family left Allen's home about 11 p. m. and walked two blocks to board a street car. They waited about ten minutes in the extreme cold before a car appeared. Shortly after midnight they arrived home. The day after her exposure to the cold Mrs. Gaesswitz complained of pains in her back and in her shoulder blades. The defendant called on her that day. On Friday, February 2, her condition became alarming. Her husband called the defendant on February 3. She examined Mrs. Gaesswitz, stated that she thought the patient had pneumonia, and advised Gaesswitz to summon a specialist on lung diseases. He, however, called Dr. Hutchison. The latter visited the patient several times between February 5 and 8. After Dr. Hutchison's visit on February 5, a representative of the city health department placed a pneumonia sign on the door of the apartment. This sign remained there until February 8, 1934, the day on which Mrs. Gaesswitz died.
The husband of the deceased, Louis Gaesswitz, a CWA employee, testified that he had never heard of the defendant prior to January 14 when he and his wife visited her father; that his wife was not bleeding on the occasion of her first and second visits to the defendant; that she took out a ‘pack’ on January 21, and that if she had been bleeding from her private parts she would have told him; that on January 22, the first time he went to the defendant's office, and, again, on January 24, he remained in the reception room while his wife was in the private office; that on both days she was fully clothed when she came out; that on the 22d they were at the office about twenty-five minutes and went home on a street car, and about an hour on the 24th, after which they went home in a cab. According to his testimony, Mrs. Gaesswitz became sick on the afternoon of January 24 between the time they left the defendant's office and before they arrived home. The witness did not elaborate and it does not appear that the illness mentioned interfered with the performance of her household duties by the deceased as the witness stated that she prepared his evening meal on January 24 and all of his meals thereafter until the 2d or 3d day of February.
Dr. Hutchison testified that he had known the deceased and her husband two years and that the former was in good health when he examined her on January 13. The witness did not see her again until the early morning of February 5. From his testimony it appears that he made no vaginal examination at that time; that he found nothing wrong with her lungs; that he did find, however, a very marked distention of the abdomen; that a distended abdomenis always associated with peritonitis; and that his final diagnosis was septicaemia—an infection flowing in the blood stream, which can be caused by any number of different things. Dr. Hutchison expressed the opinion, based upon his examination of the deceased the times he called on her between February 5 and 8, that she was suffering from ‘septicaemia, due to abortion.’ On cross-examination the witness admitted that he might have reported to the health department that Mrs. Gaesswitz had pneumonia.
The coroner's physician of Cook county, Herman A. Jacobson, made the post mortem examination. He described in minute detail the result of his internal examination and his findings, and stated that he found nothing present typical of pneumonia. This witness testified that from the post mortem examination he had formed an opinion as to the cause of death. Upon interrogation he said: ‘In my opinion the death of Gertrude Gaesswitz was a result of septicaemia—that is, blood poisoning following septic or infected traumatic, meaning with force, mechanical abortion.’ This and a similar question were objected to and a motion to strike the testimony on the ground that it invaded the province of the jury was made. The objections were overruled and the motion denied.
The defendant was fifty-eight years of age at the time of the trial and had been engaged in the practice of medicine and surgery in Chicago for more than twenty-two years. She testified that although she had known Daniel Allen for many years she was not acquainted with his daughter, the deceased, prior to January, 1934. It appears from the defendant's testimony that when Mrs. Gaesswitz came to her office on January 19, the defendant took the patient's history and upon examination found that she was pregnant; that her womb was low down in the pelvis; and that the cervix had a fish-mouth tear which had healed but was dribbling mucus streaked with blood. The defendant testified that she put a medicated cotton tampon in the vagina and directed the patient to remove it in twenty-four hours; that the only other treatment she gave her at that time was confined to a palpation of the abdomen; that on January 22 she placed the patient on a table, examined her and found that although the tampon had been removed there was still a discharge of mucus and blood; that she, the defendant, used a curette to clean out the debris that might be contained in her uterus; that a speculum was used to stretch the vagina so that the cervix or mouth of the womb could be seen and that then the curette was used; that the curette instrument is spoon shaped; that no anesthetic was administered and that the whole process took about fifteen or twenty minutes. The defendant stated that as a physician and surgeon she considered this a proper and necessary course of treatment. The examination of Mrs. Gaesswitz on January 24, according to the defendant, was a perfunctory matter as the patient was normal on that day. The defendant denied having performed an abortion upon Gertrude Gaesswitz for the purpose of relieving her pregnancy, but testified, on the other hand, that she did a physiological curettement. She received $25 for her services.
The record discloses that when the defendant was placed on trial the...
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