Sharp v. State
| Decision Date | 29 March 1939 |
| Docket Number | 27154. |
| Citation | 19 N.E.2d 942,215 Ind. 505 |
| Parties | SHARP v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Criminal Court, Marion County; Frank P Baker, judge.
Todd & McCarmack, of Indianapolis, for appellant.
O S. Jackson, Atty. Gen., and james K. Northam and Hubert E Dirks, Deputy Attys. Gen., for the State.
This is an appeal from a conviction of the crime of abortion.
Error is assigned upon the overruling of appellant's motion for a new trial.
It is contended that the court erred in permitting a medical witness, who had testified as an expert, to be cross-examined upon the question of whether or not septicemia might be produced by a certain type of injury when there was no evidence that the victim had such an injury. There is no merit in the contention. It was proper for the court to allow a reasonable latitude in the examination for the purpose of testing the knowledge of the witness if for no other purpose.
Complaint is made of several hypothetical questions upon the ground that the questions assumed facts that were not proved and did not contain facts which were undisputed in the evidence. No good purpose will be served by setting out these lengthy questions and all of the evidence. It is sufficient to say that the questions conformed to the State's theory, which it contended was supported by the evidence and the inferences reasonably drawn therefrom, and therefore there was no error in permitting the questions.
It is contended that the evidence is insufficient for the reason that the corpus delicti was not proved. This is upon the theory that there is no evidence that the result was effected by the acts of the defendant. There is no direct evidence upon this point. The appellant contends that the establishment of the fact must depend upon an inference based upon an inference, and that such a procedure is not permitted. See Orey v. Mutual Life Insurance Co., 1939, Ind.Sup., 19 N.E.2d 547.
There was evidence that the subject was cleaning house and seemed in good health on the day she called at the defendant's office; that she went down town on a street car; that she told the defendant she was pregnant, and had four children living and one dead; and that she did not want another child; that he asked her about her heart and the length of pregnancy, and that she replied that her heart was all right; that she had been pregnant five or six weeks; that the defendant told her in that case he would do something for her; that he took her into his office and put her on an operating table; that he took some instruments out of a case and said: 'This won't take but a minute and it won't hurt you'; that afterwards she asked the doctor about going to bed, and was told it was not necessary; that she could stay up; that 'about tomorrow she would start having symptoms, chills and fever, but not to think anything about that because it always happens in a case of this kind.' She then left the office, did some shopping, and went home on a street car. The next day, which was Sunday, she appeared in good health, prepared the meals for her family, did the housework and went for a ride, but in the evening did not appear to feel well and seemed to be in pain. The next morning she was ill and had temperature of 102 2/5 degrees. The defendant was called and came to see her about 9 o'clock, when she was in a bad condition, and, after giving some attention, left her. He testified that he instructed the husband to get another doctor, but the husband testified that he said nothing about it. Another doctor was called. The woman was taken to the hospital and died of general peritonitis between 11 and 12 o'clock and before anything could be done for her. There was expert medical testimony to the effect that death was from general septicemia caused by an abortion and that death could occur in such case within thirty-six hours.
It cannot be said that this evidence, standing alone and uncontradicted, is insufficient to sustain the verdict.
It is true the defendant testified that the woman admitted an attempt at abortion and that he found evidence...
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