Rhodes v. The State
| Citation | 27 N.E. 866,128 Ind. 189 |
| Decision Date | 12 May 1891 |
| Docket Number | 15,661 |
| Parties | Rhodes v. The State |
| Court | Supreme Court of Indiana |
From the Tippecanoe Circuit Court.
The judgment is reversed, with instructions to sustain the appellant's motion for a new trial.
W. P Rhodes, R. P. De Hart, A. L. Kumler and T. F. Gaylord, for appellant.
A. G Smith, Attorney General, and G. P. Haywood, Prosecuting Attorney, for the State.
The indictment upon which the appellant was convicted charges him with having feloniously introduced an instrument into the womb of a pregnant woman with the intent to produce a miscarriage.
The appellant's counsel insist that the court erred in overruling the motion to quash the indictment, and allege several objections, but all of them are without substantial merit. It is said that the indictment is bad because it does not show that the woman miscarried or died, but this point is not supported by the record, for it does appear that there was a miscarriage and death. Good pleading does not require any such particularity as counsel insist upon. It is sufficient, in such a case as this, to charge that an instrument was feloniously introduced into the womb of a pregnant woman, without showing what kind of a wound it produced or what discase it caused. Where the felonious use of an instrument is shown, and it appears, as it does here that the operation was not necessary to save the woman's life, it is not incumbent upon the State to go further and describe the nature of the wound, or the character of the disease which resulted.
The objection that the indictment is bad because it shows both miscarriage and death has not even the poor merit of plausibility.
The indictment is not bad for duplicity. An accessory before the fact may be charged as a principal.
The other questions in the case arise on the ruling denying the motion for a new trial.
Complaint is made of the ruling of the court in admitting the declarations and exclamations of the woman upon whom the abortion was committed, but the complaint is groundless. The declarations and exclamations were indicative of pain and suffering, were made by the woman in her last illness, and they did not refer to the past. They were clearly competent. Board, etc., v. Leggett, 115 Ind. 544, and authorities cited.
Dr. Smith was called as a witness by the State, and, so far as we can discover, gave no testimony different from that which the State required and expected from him. There is nothing in the record indicating that the State was surprised by his testimony, or that it was regarded as prejudicial. It is true that the witness said, in a general way, that the woman was suffering from a malarial fever, but he was not, when originally called, asked by the State as to whether there were symptoms indicating an attempt to produce an abortion. The testimony of the witness was strongly favorable to the State in one particular, inasmuch as it tended to show the appellant's intimacy with the woman upon whom the instrument was used. After the witness left the stand, and near the close of the case, he was recalled, and the counsel for the State addressed to him this question: "Did not Mrs. Chapman ask you 'what in the world is the matter with her,' and did you not reply 'I don't know; whatever she has done, or has been done, or whatever she has taken, is the cause of the sickness and will be the cause of her death.'" Subsequently Mrs. Chapman was called, and she testified that Dr. Smith was asked by her the question embodied in the interrogatory propounded by the State, and that he answered it as stated in the interrogatory. It is no doubt true that the State may, in the proper case, contradict its witnesses by evidence of contradictory statements made out of court. Conway v. State, 118 Ind. 482, 21 N.E. 285. Justly limited and rightfully applied, the statutory rule is a wise and salutary one; but if not properly limited and employed it may be very unjust and mischievous. If a party may call a witness, elicit from him only what is expected, and what is not prejudicial, and then prove statements made out of court by the witness, great harm may be done the adverse party. It happens, as the decisions and the books show, that witnesses make careless or reckless statements out of court, which they will not make under oath, and such statements ought not to be brought out by the party who produces the witness unless the testimony of the witness is prejudicial to him. It is, indeed, doubtful whether they can be brought out where there was no obligation on the party to call the witness, and the testimony was what the party knew, or had reason to believe, the witness would give. It is true that evidence of such statements is theoretically evidence affecting credibility only, and is not evidence of the facts embraced in the contradictory statements; but, nevertheless, evidence of contradictory statements does often influence the jury. The limitation placed upon the statutory rule by the decisions is a wise one. That limitation is this: Where the witness gives no prejudicial testimony upon the point to which the contradictory statements relate, evidence of statements made out of court is not competent. Where the party calling the witness is surprised by his testimony, or where it is prejudicial, then contradictory statements as to the point upon which the evidence is prejudicial is competent, otherwise not. Hull v. State, ex rel., 93 Ind. 128; Conway v. State, supra, and cases cited; Miller v. Cook, 124 Ind. 101, 24 N.E. 577. In the case last cited it was rightly held that the contradictory statements must relate to the point upon which the evidence is prejudicial, and so we hold here. While we incline to the opinion that the contradictory statements were improperly admitted in evidence, still we should be unwilling to reverse the judgment for the error, if it was one, for the reason that we think that the erroneous ruling, conceding it to be such, could not possibly have affected the result.
We are unable to perceive upon what ground the ruling of the court permitting the State to show that the woman upon whom the abortion was produced was buried at the expense of the county can be sustained. The evidence was not competent, but for the error in admitting it, if there were no other errors in the record, we should not be inclined to reverse the judgment.
The evidence that some one did use means to produce an abortion upon the woman named in the indictment is sufficiently clear and satisfactory to warrant the inference of guilt. There are circumstances tending to prove that the accused either used the instrument himself or caused some other person to use it. The criminating circumstances are, we repeat, such as warrant the inference of guilt, but they do not absolutely require it.
The evidence upon the material point as to who actually used, or caused to be used, the instrument by which the miscarriage was produced was wholly and purely circumstantial. The case is not, therefore, one in which we can say that a mistake in defining a reasonable doubt or an error in charging the law upon the subject of a reasonable doubt will not compel a reversal of the judgment. If the case were one of direct and satisfactory evidence, or one where the circumstantial evidence was so convincing and clear that we could say without hesitation that the verdict was right, possibly we might affirm the judgment of conviction under the rule laid down in Heyl v. State, ...
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