Russo v. Com.

• Decision Date: 13 June 1966
• Court: Virginia Supreme Court
• Parties: Albert J. RUSSO v. COMMONWEALTH of Virginia.

Page 820

148 S.E.2d 820

207 Va. 251

Albert J. RUSSO v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

June 13, 1966.

Rehearing Denied Sept. 13, 1966.

Arthur E. Smith, Roanoke, (Thomas Keister Greer, Rocky Mount, Richard K. C. Sutherland, Bland, Hutcherson & Greer, Rocky Mount, on brief), for plaintiff in error.

M. Harris Parker, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

BUCHANAN, Justice.

The defendant, Albert J. Russo, a medical doctor, was indicted for abortion performed on Phyllis Gaskins, in violation of § 18.1--62 of the Code. ¹ A jury found him guilty as charged, fixed his punishment at five years in the penitentiary, and sentence was pronounced on him in accordance with the verdict.

On this appeal from the judgment of conviction, and under his assignments of error, the defendant contends that the 'medical evidence' of induced abortion was not sufficient to support the verdict; that counsel for the Commonwealth made improper and prejudicial arguments; that inadmissible evidence was allowed to be introduced, and that the indictment was insufficient and his motion to quash it should have been sustained. These contentions will be discussed in that order.

The Commonwealth was, of course, not limited to 'medical evidence' to support the verdict. We look to the whole evidence and view it with the conflicts in it and the fair inferences from it settled as determined by the jury. Wright v. Commonwealth, 196 Va. 132, 82 S.E.2d 603; Crisman v. Commonwealth, 197 Va. 17, 87 S.E.2d 796. The evidence to support the verdict was as follows:

Phyllis Gaskins, an eighteen-year-old girl and unmarried, was a member of the freshman class at Radford College. On Saturday, April 4, 1964, she called the defendant, Dr. Russo, whom she did not know, at his office in Salem, some forty-five miles away, and made an appointment to see him at his office the following Friday night, April 10. A college suite mate took her and they arrived at defendant's office about 7:30 p.m. She went there for the purpose of finding out whether she was pregnant. She told defendant that she had missed her period and would like to have an examination to see what was wrong. He examined her and told her she was then six weeks pregnant. She told him she was not married and did not want to have the baby. He told her he would like to help her and he gave her a prescription, which she had filled. He told her to take the pills and see if they would work, and if they did not to come back and he would make her have a miscarriage so she would not have the baby, but that it would cost $500.

The following Monday, April 13, Miss Gaskins went again to the defendant's office to tell him that she thought she could get the money by Saturday, and he told her to come back Saturday afternoon, April 18.

She was able to get a Western Union money order payable to her for $500. She endorsed it and took it to the defendant on Saturday, as arranged. The defendant, who also dealt in real estate, wrote on the back of the money order 'Lot 22,' endorsed it and received value for it at the bank.

On receipt of the $500 money order the defendant told Miss Gaskins to take her panties off, get up on the operating table and put her feet in the stirrups. She testified that 'then he took a probe or some kind of an instrument but I couldn't see exactly what it was, and inserted that in me, and that is all I could see.' She could only see that the instrument was silver colored.

After this instrument was inserted she 'started bleeding a lot,' and he gave her a sanitary towel to use until she got back to school. He gave her some capsules to take if she started getting a fever. She went back to the defendant's office on Monday, April 20, 'and he did the same thing that he had done Saturday, he inserted some kind of a probe, and then he also put a rubber tube about twelve inches long, I guess--I don't know--, and inserted that, and he said that was to cause pain or something like that to help bring on the miscarriage. And he said if I was to get a high fever or anything during the night or that my fever should go up to remove the tube and wash it out and bring it back to him the next day.' That night she had a headache and a very high temperature with chills. She stayed in bed next day, April 21, and her girl friends wanted to take her to the college infirmary, but she called defendant instead and told him her condition and he told her to come to him immediately if she possibly could, and if not to get a shot of penicillin from the doctor, 'but not to let him examine me.'

Accordingly Miss Gaskins called a cab 'to get there the quickest way I could,' and arrived at defendant's office about noon that day. Defendant gave her penicillin and some capsules for her fever, and she spent the afternoon until about five o'clock on a bed in his office. On her return to the college she was taken to the infirmary and next day, April 22, was taken to the Radford Hospital, where she told the college physician, the president of the college and the dean of the college that an abortion had been performed on her. There a miscarriage took place on the night of April 24.

At the hospital she was examined on April 22 by Dr. Elswick and by Dr. Haas on April 23. These two doctors were specialists in obstetrics and gynecology and practiced as partners. Both took care of the hospital patients.

Dr. Elswick testified that Miss Gaskins gave the history of an attempted inducement of abortion. 'The pelvic examination revealed a uterus, a womb with two and a half to three months pregnancy size, and the month of the womb had been opened, obviously mechanically by some means, so that the outermost mouth of the womb was opened, but the inner mouth was still closed.' He said their diagnosis on admission was a threatened abortion secondary to an attempted criminal abortion, and that the ultimate diagnosis on discharge was 'complete abortion, septic, secondary to criminal inducement.'

He further testified: 'Under the definition of abortion, medically speaking there are several different kinds. A spontaneous abortion is one that terminates as the result of an abnormal, natural cause rather than one that is induced by an individual either therapeutically or criminally. This one we felt was criminal abortion under our definition.' Dr. Elswick explained that a therapeutic abortion is the termination of a pregnancy to preserve the health of the mother. Defendant's counsel stated that there was no suggestion here of any therapeutic abortion.

Dr. Elswick testified also that the uterus of Miss Gaskins was retroflexed and 'this means that it was bent on itself and had fallen back. In the normal position the womb is up, and it had fallen back at the time of my examination.' But, he said, this could not have existed on April 10 when defendant first examined her because examination of the fetus after the abortion showed that apparently the membrane had ruptured, or had been ruptured, and the fluid from the pregnancy had leaked out, allowing the uterus to obtain a smaller size and fall back out of position. He said that the retroflexed position of the uterus seldom, if ever, results in abortion; that it can, but almost never does. Miss Gaskins testified that when defendant examined her on April 10 he said nothing about anything being wrong with her uterus.

On cross-examination Dr. Elswick was asked what 'cardinal signs' he found in reference to a criminal abortion. He replied: 'Well, there was something that was very distinct as far as diagnosis of a criminal abortion, and this is the fact that the outermost mouth of the womb had opened, and the innermost mouth was still closed. With a spontaneous abortion which you have been referring to the innermost mouth of the womb opens first and the outermost mouth of the womb opens secondary to this.'

The testimony of Dr. Haas was in agreement with that of Dr. Elswick. He testified that at the time Miss Gaskins was admitted to the hospital abortion was inevitable, meaning that it could not be saved; and that he diagnosed it as induced septic abortion, meaning that some external force was used on the uterus. He had never seen or heard of a retroverted uterus causing an abortion, and it did not cause this one, he said.

For the defendant, Dr. William Joseph Ellis testified that he engaged in the general practice of medicine in Covington, including obstetrics, and was associated with the Alleghany Memorial Hospital there. He was shown a copy of the hospital record of the Radford Hospital with reference to Miss Gaskins, which he had previously examined. He was then asked whether there was anything in that record consistent with criminal abortion other than the history related by the patient. He replied, 'No, sir, there isn't.' He disagreed with Doctors Elswick and Haas in their conclusions, and stated his opinion to be that in order to effect an abortion by instrumentation the internal os (mouth of womb) would have to be entered; that a retroflexed uterus can cause an abortion, but he conceded that it almost never does.

The defendant testified that he had been practicing medicine in Salem for twenty-three years as a general practitioner; that he did not perform any abortion on Miss Gaskins; that she came to see him first on April...