State v. Anderson
| Decision Date | 20 December 1930 |
| Docket Number | 30261 |
| Citation | 34 S.W.2d 25 |
| Parties | STATE v. ANDERSON |
| Court | Missouri Supreme Court |
Stratton Shartel, Atty. Gen. (Otis Patterson, of Springfield of counsel), for the State.
Indictment returned in the circuit court of Jackson county charged that the defendant had committed manslaughter by producing an abortion upon one Gertrude Mandell Dugey, causing her death; that in perpetrating such miscarriage he caused the death of a quick child with which she was then pregnant. The death of the woman occurred July 25, 1928. On a trial, June 20, 1929, the defendant was found guilty of manslaughter and his punishment assessed at two years in the penitentiary. From the judgment following he appealed.
The appellant has filed no brief in this court. Only two grounds for reversal, repeated in different forms, are presented in the motion for new trial; one that the court erred in refusing to sustain the defendant's demurrer to the evidence; the other alleged error in receiving in evidence the dying declaration of Gertrude Dugey. The case is made out almost entirely on the evidence of Dr. McRaven to whom she made that declaration, testimony of the coroner who performed an autopsy upon the woman's body after her death, and the evidence of Louis Mandell, the father of the girl, who interviewed the defendant after the death.
I. Dr. Cyrus P. McRaven, a practising physician in Kansas City, was called to see Gertrude Dugey July 23, 1928. She was in bed with temperature of 103 or more, very rapid pulse, and suffering intense pain. The physician found her abdomen 'remarkably distended * * * rigid * * * hard,' which indicated an abnormal condition. Her eyes were glossy, she was listless and nervous; the physician made only an external examination. In a sort of whisper she requested the doctor to have her folks go out of the room; then after they were gone she said that she believed she was going to die; that she had caused her mother enough heartache and did not want to cause any more, and did not want her to know it. Then, the doctor said, she told him that she had missed two periods; she had been married only six weeks and she did not want to cause any disgrace to the family, so she went to Dr. Anderson and had an abortion performed. She went to his office two or three times for treatment, and on Saturday or Sunday before the witness saw her on Monday, and Dr. Anderson (using the language of the witness), 'as she described it, cleaned her out, and that is about the substance of her statement to me.' On the advice of Dr. McRaven she was taken to the hospital; she died two days later. Glen C. Carbaugh, a physician, coroner of Jackson county, testified that he made an examination upon her body after the death, and the examination disclosed that the uterus was punctured by some sharp instrument, and that she was afflicted with peritonitis extending over the lining of the intestines and the peritoneum; that death was caused by the puncturing of the uterus followed by extensive peritonitis.
Lewis Mandell, the girl's father, described how his daughter asked the others to go out of the room while Dr. McRaven examined her. After the death of the daughter he went to see Dr. Anderson and said to him: 'I want to see if you think it was right for you killing my daughter and then handing her back to me to bury.' He then asked the doctor if his daughter ever came to see Dr. Anderson by herself. The doctor said no; she came with a young man, her husband, Tommie Dugey, who asked the doctor what he would charge to perform the operation, and he told Dugey that his price was $ 25. They went away and came back with the $ 25 and he performed the operation. He said all he did was to 'open her up'; he approved of that even with his own daughter to save her from disgrace. He asked the doctor if it is possible to tell how far along a girl is by an abortion. The doctor said, 'Yes.' The witness then asked if the doctor could tell how far along his daughter was at the time. Anderson said possibly six weeks; he would say positively not over two months; the doctor said further that he was sorry she did it.
I. There was no objection to the evidence of Dr. McRaven regarding what the girl told him about Dr. Anderson's performing abortion, on the ground that it was a conclusion in the dying declaration instead of a statement of a specific fact within the girl's knowledge. When Dr. McRaven gave what he called the 'substance of her statement,' he was not asked by defendant's counsel to give the 'statement' more specifically. Nor was there any objection that the trial court had not first examined the witness in the absence of the jury, as to the dying declaration. There was no objection to the statement, except that 'the testimony failed to show at the time such statement was made she was in full sense that death was immediate and that she had no hopes or expectation of recovery, and that she was of sound...
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