Schlesak v. State

• Citation: 287 N.W. 703,232 Wis. 510
• Parties: SCHLESAK v. STATE.
• Decision Date: 10 October 1939
• Court: United States State Supreme Court of Wisconsin

232 Wis. 510

287 N.W. 703

SCHLESAK

v.STATE.

Supreme Court of Wisconsin.

Oct. 10, 1939.

Error to review a judgment of the Municipal Court of Milwaukee County; Max W. Nohl, Judge.

Mary Schlesak was convicted of manslaughter in the second degree and she brings error.-[By Editorial Staff.]

Affirmed.

Plaintiff in error, hereinafter called the defendant, was prosecuted for manslaughter in the second degree as defined by sec. 340.16, Stats. Trial was had to the court and a jury. The jury returned a verdict of guilty. From a judgment of conviction, entered September 17, 1938, and a sentence to the Wisconsin prison for women at Taycheedah for an indeterminate term of not less than four years nor more than five years (Sec. 340.17, Stats.), the defendant brings error.Eugene J. Sullivan and Roland J. Steinle, both of Milwaukee (Bruce B. F. Randolph, of Milwaukee, of counsel), for plaintiff in error.

John E. Martin, Atty. Gen., and Herbert J. Steffes, Dist. Atty., and Andrew W. Brunhart, Asst. Dist. Atty., both of Milwaukee, for the State.

NELSON, Justice.

The information in substance charged that on April 10, 1938, the defendant feloniously performed an operation upon Lucy Mente, a pregnant woman, with the intent to produce an abortion, which operation produced the death of Lucy Mente on May 29, 1938, at the county of Milwaukee in the state of Wisconsin. Upon the coming in of the verdict and before sentence, the defendant moved that she be discharged for the reason that there was no credible evidence in the record to support the verdict of guilty and for the further reason that the state had failed to prove her guilty of the crime charged beyond a reasonable doubt. The defendant also moved for a new trial upon the same grounds. The defendant assigns as errors the refusal of the court to set aside the verdict and discharge the defendant and the refusal of the court to grant a new trial.

The defendant contends that there is no credible evidence to support the verdict. That contention requires a review of the material facts adduced by the state.

On April 10, 1938, Lucy Mente, hereinafter called the deceased, resided with her husband at 1227 South Fifteenth Street in the city of Milwaukee. She was thirty-eight years of age and the mother of four children aged respectively eighteen, eleven, nine and seven years. On April 10, 1938 she was pregnant but did not desire to have another child. On April 10th, after supper, she and her husband, Jacob Mente, went to the home of the defendant located at 3955 West Bluemound Road. The defendant was a registered midwife who for many years had practiced midwifery in Milwaukee county. Her husband operated a tavern at the same location. The tavern was on the ground floor. The defendant's living quarters were in the basement under the tavern.

Jacob Mente testified that he and the deceased went to the tavern on April 10, 1938, which was Palm Sunday, and arrived there shortly after seven o'clock; that he went there for the purpose of having an abortion operation performed upon his wife; that when they entered the tavern, Mr. Schlesak, the husband of the defendant, was behind the bar; that he asked for the defendant; that after having served them beer, Mr. Schlesak said that he would call her; that he did call her and that she came up into the bar room; that the defendant then said “we should follow her downstairs” which he and the deceased did; that he asked the defendant if he should wait downstairs or upstairs and that she replied “upstairs;” that he paid her $25 and that she asked him to put his name and address on a piece of scrap paper that she had there; that he then went upstairs and waited in the bar room for about three-quarters of an hour; that at the end of that time the defendant and the deceased came upstairs and the deceased said to him in the presence of the defendant: “We're all through;” that a taxi was called and they returned to their home; that upon arriving home the deceased went to bed; that he did not see the defendant again until Saturday, the 16th of April; that during the week the deceased got worse; that on Saturday evening he could see that the deceased was very ill; that about 11:30 P. M. he tried to get a certain doctor to come to his home to treat the deceased; that the doctor refused to come; that close to midnight he had someone call the defendant; that a car belonging to a friend was dispatched to convey the defendant to his home; that the defendant came; that shortly after arriving she went into the kitchen and thereafter appeared with certain instruments in her hand; that she went into the bedroom where the deceased was and closed the door behind her; that she was in there about fifteen minutes; that during the time the defendant was in the bedroom the deceased screamed; that the defendant came out of the bedroom and, after procuring some warm water, asked him to assist her in giving the deceased an enema.

On Monday, April 18, 1938, the deceased was taken to the Milwaukee County General Hospital. The next morning her condition, in the opinion of a hospital doctor, was critical. At six o'clock in the morning she was given a hypodermic of morphine. A priest, who was thereafter called, arrived at the bedside of the deceased shortly after eight o'clock. He heard her confession and gave her the last sacrament in accordance with the rites of the Roman Catholic Church. Father Denhart, the priest, testified that the deceased realized that she was very sick. The district attorney's office was notified of the critical condition of the deceased, and John Zilavy, detective, and Roy Bethke, reporter, went to the hospital for the purpose of obtaining a statement from the deceased. Questions were propounded to the deceased by Mr. Zilavy, in the presence of Mr. Bethke and a Mrs. Bechtel, which she answered. Mr. Bethke took down the questions and answers in shorthand and thereafter made a typewritten transcript thereof, consisting of about seven and a half pages. The deceased, after answering a number of questions as to her name, age, husband's name, children and their ages, etc., was asked the following questions:

“Q. You realize you are in a serious condition, don't you? A. Yes.

“Q. And you want to make a true statement at this time? You want to tell me the truth about your condition? A. They take away, about the baby, I was there once.

“Q. Who did that? A. Mid-wife.

“Q. And how long were you pregnant? A. Oh, about three months.

“Q. You realize that you are in a very serious condition and about to die and you wish to make a true statement, is that right? A. Yes.”

The deceased then stated in substance that she had gone to this midwife on Palm Sunday; that she had told her that she was pregnant; that the name of the midwife was Mary Schlesak; that the latter lived at 3955 West Bluemound Road; that she charged $25 for the operation; that the defendant did not want to do it but that she begged her to do it; that the operation was performed “at her home” in the evening of Palm Sunday in her bedroom; that the operation was performed with instruments which she described; that the defendant came to her home on Tuesday night and again did the same thing; that on Tuesday night the foetus passed.

After the statement of the deceased was taken a statement was taken from Mr. Mente, who was in the hospital. He stated that the operation was performed at the home of the defendant. The persons who had taken the deceased's statement then went back into her room and asked the following questions:

“Q. Mrs. Mente, I understood you to say before when I talked to you that the first time this woman did the operation on you it was on Palm Sunday? A. Yes.

“Q. And I understood you to say that it took place at your home about 9 o'clock in the evening. It didn't take place at your home? A. No.

“Q. Where did it take place? A. By her home.

“Q. Then after that she came to your home, is that right? A. Yes, she come home on Tuesday first.”

Louise Banauer, sixteen years of age, a niece of the deceased, testified that she took care of the deceased from Monday, April 11th, until Friday night, April 15th; that she saw the defendant at the Mente home on Tuesday, April 12th, and that the defendant at that time asked for hot water and went into the deceased's room; that she saw the defendant again on Friday and at that time the defendant asked for hot water and went into the deceased's room; that on Wednesday of that week the deceased called her and said: “It is coming and I can't help it, you will have to see it;” that she thereafter saw the foetus, which she fully described. The foetus was also seen by Jacob Mente, the husband, and by another witness, both of whom described its size and appearance.

Shortly after the statement was taken by Mr. Zilavy, Father Denhart again saw the deceased and conversed with her. This was about an hour and a half after he had given her the last sacrament. He testified that the essence of what the deceased said at that time was that she was very sick and that she had to die now. In the days which followed the deceased's condition seems to have become somewhat less critical and she lived until May 29, 1938. A post-mortem examination was conductedby Dr. Tharinger on May 30th. He testified that in his opinion death was caused by peritonitis, the result of abortion. He testified, among other things, that there was a channel in the cervix of the uterus which could have been caused by an instrument.

The defendant testified that the only time she saw the deceased was on Saturday night, April 16th, or early Sunday morning, when she was...