Solander v. People

• Decision Date: 01 February 1873
• Parties: SOLANDER v. THE PEOPLE.
• Court: Colorado Supreme Court

2 Colo. 48

SOLANDER v. THE PEOPLE.

Supreme Court of Colorado

February, 1873

Error to District Court, Boulder County three counts. In the first count, it was charged that the defendant caused the death of Fredericka Baum by the use of a bougie in and upon the body of the said Baum, she being then pregnant with child. In the second count, it was charged that the death was caused by the use of an instrument unknown. In the third count, it was charged that the defendant administered to the said Baum a certain noxious and destructive substance called Gossypium, and other noxious and destructive substances, to the jurors unknown, with intent thereby to procure miscarriage of the said Baum, she being then pregnant with child, and thereby caused her death. At the June term, 1872, the defendant petitioned for change of venue, alleging, in her petition, 'that she entertained serious and well-grounded fears that she will not receive a fair and impartial trial in this court, on account of the prejudice which she believes exists in the mind of the judge thereof against her, and that said fears rest upon the fact that petitioner has, within the last two days, heard, and she believes what she has heard to be true, that said judge expressed an opinion previous to the finding of said indictment against her by the grand jury, and, subsequent thereto, that she was guilty of the procuring the abortion therein charged, and was cause of the death of said Fredericka Baum; and that she has heard, and believes it to be true, that the said judge tried to prevent her from procuring bail, in said cause, at the last January term of said court. Petitioner further represents, to your honor that she entertains serious and well-grounded fears that she will not receive a fair and impartial trial in this county because the inhabitants of said Boulder county are prejudiced against the petitioner, so that she cannot receive a fair trial in said court; and that said fears are founded upon the facts that the physicians of said county, or many of them tried to prejudice the minds of the jurors and people against her, and to make them believe she is guilty as charged in said indictment, and that they have, to a great extent succeeded in doing so. And, also, that she has heard, and believes it to be true, that several of the inhabitants of said county have been trying to prejudice the minds of several of the inhabitants of the petit jury summoned in this court to serve the present term against petitioner, and have succeeded in making them believe that she is guilty of the crime as charged in said indictment.' Several affidavits in support of the petition were of the same tenor. The court denied the motion, and continued the cause to the next term. At that term, Mr. Justice WELLS was called to preside, and the first trial resulted in disagreement of the jury, December 13, 1872. The cause was then set down for trial on the 6th of January, 1873, and a special venire ordered for that day. No objection was made to this panel, and the second trial was begun on 7th of January, 1873. Objection was made to several jurors, which is sufficiently stated in the opinion of the court. Clemens Knauss, a witness for the people, testified substantially as follows: That he knew the deceased since the year 1867, and that she died on Tuesday, December 5, 1871; that shortly before her death he went to Boulder for the prisoner, and told her that deceased desired to see her; a conversation then ensued between the witness and the prisoner, in which the prisoner disclosed some knowledge of deceased's condition, and of the nature of her illness. Prisoner stated to witness that deceased had been taking medicine from Denver, and that if she should die that medicine would be the cause of her death; 'she said that would clear her.' The prisoner also inquired for the foetus which had come from deceased, and requested the witness to take it away, as inquiry might be made for it. The witness stated that he concealed the foetus at prisoner's request. On the following day the witness returned with prisoner to Boulder, and upon that occasion prisoner told him 'that she wanted to get Berkley for her lawyer; that she wanted to get Dr. Beard and Groseback over; that they were good friends of hers, and if she got them over for examination, she would be all right; she said if any one should ask me what is the matter, I should say I do not know, the doctor will find it; that I should keep still and not say any thing about it.' The witness also stated that on the Saturday preceding, he visited the prisoner at Boulder, in company with deceased, and upon that occasion the prisoner asked him if he had come to get her for deceased, and if deceased was there herself; that deceased and prisoner remained together for about one hour, during which time the witness was not present; that deceased, the prisoner and the witness then returned to deceased's home, and the prisoner remained there until Monday morning; the witness further stated, that about three weeks before that time, he had procured medicine in Denver, at deceased's request, for the purpose of producing miscarriage, and that deceased had taken such medicine; that he had applied to Dr. Peters of Valmont, for medicine for the same purpose, but without success; the witness also stated that deceased went to Boulder on the Thursday preceding her death, and that upon the road home she told him what was the object of her visit; the declarations of deceased upon this occasion, being called for, were objected to by the prisoner, the court received them however, and the prisoner excepted. The declarations of deceased were that she had visited the prisoner for the purpose of employing her to procure miscarriage, that the prisoner had stated that it would be necessary to use an instrument, and to procure medicine from St. Louis; that she would charge $30 for her services; the witness further stated, that the prisoner left some powders with deceased on Monday previous to the death of the latter, and that he gave deceased some of them; that deceased fainted after the taking of each powder; that deceased gave prisoner some chairs in part payment of the services of the latter. Other witnesses testified to the circumstances attending deceased's death. It was also in evidence that death was caused by an attempt to produce abortion, and that an instrument was used for that purpose. Dr. Allen, coroner, stated that the prisoner told him, at the inquest, that she supposed deceased was laboring under prolapsus uteri, and that she was treating deceased for that; he also stated that he saw no indications in the body of deceased, of prolapsus uteri; it was also in evidence that a bougie, broken in three pieces, was found upon the premises, and that the injuries observed in the womb of deceased might have been produced by that instrument. It was also in evidence that the powder left with deceased, bore striking resemblance to gossypium, and that the effect of that drug is parturient and abortionary. The testimony as to the probable effect of the use of the instrument and of the powders, and the quality of the powders, was very voluminous. A witness also testified that when the bougie was found upon the premises of deceased, prisoner disclaimed any knowledge of it, and said she did not know what instrument was used for procuring abortions; that she had never seen one. The prisoner was put upon the stand as the only witness in the defense; she denied having used any instrument, and also that she had advised it; she admitted having given powders, but denied that they were gossypium, and averred that they were not intended to produce abortion.

Upon the argument, counsel for the people claimed before the jury, that the testimony of the witness, Knauss, was entitled to credit, from the circumstance that prisoner, although examined in her own behalf, had not contradicted said Knauss, as to conversations said to have been had by Knauss with the prisoner, and that prisoner's counsel had not interrogated her thereunto.

Upon this, the prisoner's counsel prayed the court to instruct the jury:

'That, in the examination of the prisoner provided for by the statute, which examination extends only to the facts and circumstances of the cause on trial, and does not confer on the prisoner the right to testify to facts or circumstances tending to impeach any of the witnesses in the cause. Therefore, the fact that defendant did not testify to facts or circumstances calculated to impeach any of the witnesses sworn in the case is not to be taken as properly commented upon, or as a circumstance against her.'

But the court refused to so charge, and the prisoner excepted.

Prisoner also asked the following instructions:

'That, if the proof of her guilt rests on circumstantial evidence, unless the circumstances be such as to produce, in the minds of the jury, a moral certainty of her guilt, and of such a nature as not to be reasonably accounted for on the supposition of her innocence, but perfectly reconcilable with the supposition of her guilt, they ought not to convict the prisoner.'

'The jury are instructed that they cannot find the fact of confederacy between the deceased and the defendant, to procure the abortion which is charged to have resulted in the death of deceased, from the declarations of the said deceased not made in the presence of the defendant. The declarations of the deceased can only be received to prove some fact which is material to be proved, after the confederacy has been established by other competent evidence, and if the jury fail to find a confederacy between the accused and defendant, to procure the abortion complained of, by evidence other than the declarations of the...