Smith v. State

• Decision Date: 04 December 1946
• Docket Number: A-10521.
• Citation: 175 P.2d 348,83 Okla.Crim. 209
• Parties: SMITH v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

175 P.2d 348

83 Okla.Crim. 209

SMITH v. STATE.

No. A-10521.

Court of Criminal Appeals of Oklahoma

December 4, 1946

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Lena Griffin Smith was convicted of manslaughter in the first degree, and she appeals.

Affirmed.

In murder prosecution based on procurement of an illegal abortion, where information charged murder and that defendant was not a licensed medical doctor and that she did not have legal authority to practice medicine, and evidence disclosed that defendant did not have any such license or certificate the issue of manslaughter in the first degree as an included offense was properly submitted. 59 Okl.St.Ann. § 491; 21 Okl.St.Ann. § 701, subd. 3; § 711, subd. 1, § 861.

Syllabus by the Court.

1. It is the general rule recognized by all authorities that the admission in evidence of other crimes, either prior or subsequent to the alleged offense, is inadmissible.

2. To the general rule that the admission in evidence of other crimes, either prior or subsequent to the alleged offense is inadmissible, there are, however, certain exceptions which are as well recognized as the rule itself, as, where the evidence tends directly or fairly to prove guilt of the crime charged, or to connect one with it, or where the crime charged and other offense are closely related or connected or where such testimony is for the purpose of showing that it was a part of a system or common scheme or plan; or when proof of a separate offense is explanatory of the motive or intent of the offender in the commission of the offense charged. These exceptions are often recognized in cases where one is charged with the crime of abortion.

3. Exceptions to the general rule have been approved by the Criminal Court of Appeals when they reveal the other offense was a part of a system or common scheme or plan, or where they were explanatory of the motive or intent of the defendant in the commission of the crime charged.

4. When evidence of other offenses are admitted in evidence by reason of the exceptions to the general rule, it becomes the duty of the trial court to properly instruct the jury as to the limited purpose for which the evidence was admitted.

5. A voluntary confession or statement is one made by an accused freely and voluntarily, without duress, fear or compulsion in its inducement, and with full knowledge of the nature and consequences of the confession or statement.

6. For full discussion of what constitutes voluntary and involuntary confessions, and the proper procedure to determine whether a confession is voluntary or involuntary, see the cases of Lyons v. State, 77 Okl.Cr. 197, 138 P.2d 142, 140 P.2d 248; Id., 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481; and Fry v. State, 78 Okl.Cr. 299, 147 P.2d 803.

7. Where one is charged with murder by reason of having performed an abortion, it is necessary for the state to prove that the deceased was pregnant at the time she was administered to by the accused; and that the commission of the abortion was the cause of the death of the deceased.

8. As a general rule, statements and declarations by the person injured by the crime are not admissible unless a part of the res gestae, or, within the exception as to dying declarations, unless introduced for impeachment purposes or to show an admission by accused when they were made in his presence.

9. Where one is charged with the crime of murder, and the facts justify, manslaughter in the first degree may be submitted to the jury as an included offense.

10. In a prosecution for murder, the court should submit the case for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests; and if the evidence tends to prove different degrees, the law of each degree should be submitted, whether it be requested by defendant or not.

Herbert K. Hyde and Lee Williams, both of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and George Miskovsky, Co. Atty., of Oklahoma City, for defendant in error.

BAREFOOT, Judge.

Defendant Lena Griffin Smith, was charged in the District Court of Oklahoma County with the crime of murder; was tried, convicted of manslaughter in the first degree, and her punishment assessed at ten years in the State Penitentiary, and she has appealed.

The information filed charges the defendant with the crime of murder, and in part is as follows:

'* * * did then and there without authority of law, and while engaged in the act of the commission of a felony, * * * did administer to the said Mrs. Naomi Congdon, a pregnant woman and prescribe for said Mrs. Naomi Congdon and advise and procure the said Mrs. Naomi Congdon to take certain medicines, drugs and substances and did use and employ certain instruments and other means with the intent thereby to procure the miscarriage of the said Mrs. Naomi Congdon, to-wit: a speculum and other instruments and drugs and medicines * * * in and upon the body of the said Mrs. Naomi Congdon who was then and there a living woman, pregnant with an unquick child, with the intent then and there on the part of her, the said Lena Griffin * * * by the use and employment of said instruments and things and drugs and medicines as aforesaid, to procure the miscarriage of the said Mrs. Naomi Congdon, but none of which acts or any of them, being necessary to preserve the life of the said Mrs. Naomi Congdon, the said defendant not then and there being a licensed medical doctor and not having legal authority to practice medicine, and the said defendant then and there well knew that the use and employment of said instruments and things and drugs and medicines upon the body of the said Mrs. Naomi Congdon was not necessary to be done by her at that time and place to preserve the life of the said Mrs. Naomi Congdon, and the use of said instruments, drugs and medicines by the said defendant upon the body of the said Mrs. Naomi Congdon was an act which was imminently dangerous to the said Mrs. Naomi Congdon and being made a felony by the statutes of the State of Oklahome, * * *.'

The alleged felony so attempted to be charged is under Tit. 21 O.S.1941 § 861, as follows:

'Every person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the penitentiary not exceeding three years, or in a county jail not exceeding one year.'

For a reversal of this case, the following alleged errors are submitted and argued:

'1. Error in the admission of evidence of other alleged crimes, including alleged crimes after the crime alleged in the information here.

'2. Error in the admission of an alleged confession which was not voluntary.

'3. Error in overruling the demurrer to the state's evidence, and error in overruling defendant's motion for a directed verdict, because of failure of proof of one of the necessary elements of the crime charged, i. e., the pregnancy of the deceased.

'4. Error in overruling the demurrer and motion for a directed verdict, because the evidence was insufficient to establish the cause of death of the deceased.

'5. Error in refusing to permit to prove antecedent declarations made by deceased which would have tended to establish her death was caused by other means.

'6. Error of the court in submitting to the jury the issue of manslaughter in the first degree, same not being an included offense under the evidence.'

A brief statement of the evidence is necessary for a consideration of the above errors.

The deceased, Mrs. Naomi Congdon, was the wife of D. Congdon, a sailor who was stationed at the 'south naval base,' near Norman, Cleveland County, Oklahoma, and eighteen miles from Oklahoma City. Mrs. Congdon was twenty-one years of age, and had an apartment at 431 West Twelfth Street, in Oklahoma City, prior to and on August 16, 1943. The defendant was operating a place of business at 2134 Harden Drive, in Oklahoma City, to which she referred as a home for unfortunate girls, and the state contends was a place where abortions were performed upon pregnant women for a money consideration.

The evidence revealed that this place had been conducted by defendant for a period of fifteen years. The deceased went to the place of business of the defendant in the afternoon of Monday, August 16, 1943. She was there treated by the defendant. There is a conflict as to the nature of this treatment, and reference will be made to this conflict in discussing the errors assigned.

D. Congdon, husband of deceased, went to defendant's place of business to see his wife on Tuesday evening, August 17. He left promising his wife to return later that evening, and when he returned he was informed by defendant that his wife was asleep, and he was not permitted to see her. He went back Wednesday evening, August 18, 1943, and found his wife very sick, and testified that the defendant wanted him to take her away and get a doctor. Mr. Congdon went to the Navy Shore Patrol Headquarters, and Dr. Morris H. Cohen was called, and about an hour later Mr. Congdon and Dr. Cohen went to defendant's home, and Mrs. Congdon was taken to the Navy Hospital at the south base, in Norman, where she remained until August 28, 1943, when she died of 'septicemia' due to an abortion, as stated in the certificate of death furnished to the Oklahoma State Health Department by Dr. R. J. Cooper, of the Navy.

A search of the premises of defendant was made on August 31 1943,...