People v. Gleitsmann

• Decision Date: 04 October 1935
• Docket Number: No. 22852.,22852.
• Citation: 197 N.E. 557,361 Ill. 165
• Parties: PEOPLE v. GLEITSMANN.
• Court: Illinois Supreme Court

361 Ill. 165

197 N.E. 557

PEOPLE

v.GLEITSMANN.

No. 22852.

Supreme Court of Illinois.

June 14, 1935.

Rehearing Denied Oct. 4, 1935.

Error to Criminal Court, Cook County; Walter P. Steffen, Judge.

Emil Gleitsmann was convicted of manslaughter by abortion, and he brings error.

Reversed and remanded for new trial.Northup & Beardsley and Harry J. Meyers, all of Chicago, for plaintiff in error.

Otto Kerner, Atty. Gen., Thomas, J. Courtney, State's Atty., of Chicago, J. J. Neiger, of Springfield, and A. B. Dennis, of Danville (Edward E. Wilson, Henry E. Seyfarth, and John T. Gallagher, all of Chicago, of counsel), for the People.

JONES, Justice.

A writ of error was sued out by Emil Gleitsmann to review a judgment of conviction in the criminal court of Cook county for the crime of manslaughter by abortion.

Mary Colbert was an unmarried woman twenty-three years old and had been keeping company with Edward Detman.According to the testimony of Detman, he accompanied her on March 15, 1933, to the office of the defendant, a licensed practicing physician.Detman told defendant Miss Colbert was pregnant, and that he wanted her relieved.After a fee was agreed upon, the defendant, in the presence of the witness, made a vaginal examination and thereafter inserted an instrument into her womb.He then placed some cotton containing a brown medicine in the duct.Miss Colbert returned to defendant's office with Detman about a week later, but the witness remained in the outer office.She became sick on March 21, 1933, and died four days later.Dr. Samuel A. Levinson, coroner's physician, testified he conducted an autopsy and discovered certain physicalconditions, which he described with considerable minuteness, and then gave his opinion that deceased had been pregnant three or four months previous to her death and had died as a result of a criminal abortion.He did not testify to the existence of any lacerations, perforations, or abrasions, yet he said that the abortion had been performed by instrumentation.

Annie Collunden, an aunt of Miss Colbert and with whom the latter lived, testified that a few days before Miss Colbert's death she asked that the defendant be called to see her.Mrs. Collunden complied with this request and the defendant came and administered treatment.When he was about to leave, Mrs. Collunden said, ‘Doctor, there has been something done to that girl.’He replied, ‘Yes; they get in trouble; they come to me and I help them out.’

Frank Donahue, a police officer, stated that he went to the police station after the defendant had been taken into custody and had a conversation with him, and during that conversation he asked the defendant if he had inserted any instrument into the vagina of the deceased, and that the defendant replied, ‘Once in a while.’The witness also testified that the doctor admitted he had used a probe, but that it had been broken up.

The defendant denied he had performed an abortion or had inserted any instrument in the deceased's vaginal cavity for any such purpose.He testified that Miss Colbert came to his office with Detman, who claimed to be her husband, and that Detman said she was in great pain and something had to be done quickly.The defendant made a hasty examination, which did not disclose pregnancy.His conclusion was that she was suffering from septic blood poisoning and had peritonitis.He gave her a treatment to alleviate pain and told her it would take a month to get rid of the poison.She returned to his office several times thereafter for treatment, and he visited her at her aunt's house, where he treated her.Three witnesses testified to his good reputation for truth and veracity and for being a law-abiding citizen.He denied having made the statements attributed to him by Mrs. Collunden and the police officer.

It will be seen that the conviction rests largely upon the testimony of the witness Detman, an accomplice.Dr. Levinson testified only to physical conditions revealed at the autopsy, and gave his conclusions based upon observations made at that time.The testimony of Mrs. Collunden does not necessarily lead to an inference against the defendant.It contains no reference to an abortion, and it is conceded that the purpose of his visit to her house was to give assistance to Miss Colbert.Since no one contends the defendant inserted an instrument into the decedent more than once, we therefore make no comment upon the reasonableness or unreasonableness of the police officer's testimony.

Although Dr. Levinson testified that in his opinion the abortion was produced by means of instrumentation, he did not testify to a single fact which would support the opinion that the abortion, if one was committed, was brought about by an instrument.It was error to permit him to express his opinion that Miss Colbert came to her death from a criminal abortion.In People v. Rongetti, 338 Ill. 56, 170 N. E. 14, the evidence showed that the posterior fundus of the uterus of the deceased woman had a punctured wound about size of a fountain pen.A coroner's physician was permitted to testify that death was due to an abortion.This court held that where the evidence is conflicting as to whether or not any operation was performed upon the deceased, an expert witness should not be permitted to testify that the deceased came to her death as the result of an abortion.It is an error of even greater prejudice to the defendant to permit a witness to testify that death was the result of a criminal abortion.Whether there was an abortion at all and whether the abortion was criminal are the ultimate facts which the jury was selected to determine, and a witness cannot be permitted to assume that function.

It is contended that the defendant is not in a position to complain of the error because he made no objection to the testimony and no motion to exclude it.If it were not for other errors in the case, we would be considerably persuaded by this...