State v. Ausplund

• Decision Date: 16 October 1917
• Citation: 86 Or. 121,167 P. 1019
• Parties: STATE v. AUSPLUND.
• Court: Oregon Supreme Court

167 P. 1019

86 Or. 121

STATE v. AUSPLUND.

Supreme Court of Oregon

October 16, 1917

Department 1.

Appeal from Circuit Court, Multnomah County; John P. Kavanaugh Judge.

A. A Ausplund was convicted of an offense, and he appeals. Affirmed.

The defendant was convicted of the crime of manslaughter, alleged to have been committed by producing an abortion, and sentenced to imprisonment in the penitentiary. He appealed from the judgment.

J. F Logan, of Portland (Logan & Smith and J. J Fitzgerald, all of Portland, on the brief), for appellant. C. C. Hindman, of Portland, for the State.

BURNETT J.

The first assignment of error is that there was no proof of the corpus delicti sufficient to carry the case to the jury. Substantially the testimony was that Anna Anderson, an unmarried woman about 25 years of age, who up to that time was in good health, went to the office of the defendant, a practicing physician, on October 15, 1915. Previously she had applied to another physician, who examined her and discovered that she was about three months advanced in pregnancy. She asked him to remove the fetus, which he declined to do. According to the statement of the defendant made to the officers, the decedent told him, when she came to his office, that there was something wrong with her, and she wished him to examine her; that he laid her upon a lounge and proceeded to make digital examination; that when he inserted his fingers in the vulva she suddenly began to gasp, and he saw that she was dying; that he then went out for some stimulant, and while on that errand called to his assistance a lady physician whose office was in the same building; that on their return to his office they determined to call a third physician, but the girl died despite their efforts to revive her. The coroner and other persons testified that they found the decedent with her skirts removed and the lower part of her body unclothed except for her drawers and combination suit, and that they discovered a bloody sheet in the defendant's office and one of his white coats upon which there were a number of blood stains. Several surgical instruments adapted for curetting the uterus were seen in his office, and upon one of them was a piece of tissue which some expert witnesses said was a portion of the placental membrane. These instruments had the appearance of having been recently used. The floor in his operating room was wet, and there was a Kelly pad which was wet, as though it had been lately employed in operations involving female diseases. The autopsy showed that the uterus had a number of traumatisms on its interior surface, and that it was expanded to about the stage proper for three months' pregnancy. The undertaker who embalmed the body testified, in substance, that in the process of withdrawing the blood from it he could get only a comparatively small quantity. There was testimony that the lesions of the uterus were made within not to exceed five to eight hours prior to the death of the girl. In our judgment all these circumstances taken together are sufficient to authorize the jury to determine whether or not the death of the young woman was caused by unlawful means, and to attribute the same to the action of the defendant. These conditions take the question of proof of the corpus delicti from the court and pass it to the jury.

The defendant next contends that the circuit court erred in refusing to give to the jury the following instruction:

"In prosecutions under the law of the state of Oregon and under which the indictment in this case is drawn, it is required of the state that it allege and prove, among other things, that the employment of the means set out in the indictment which were used to destroy the fetus were not necessary to preserve the life of the woman. Proof that a physician, in his professional treatment of a woman pregnant with a child, had used means with intent thereby to destroy the child, and the death of this mother followed, is not evidence that the treatment was not necessary to preserve the life of the mother. The defendant has the right to stand upon his plea of 'not guilty,' and that the prosecution is required to prove every charge in the indictment constituting the offense, including allegations of negative matter before a conviction can be had in the case."

In support of this attack upon the conviction the defendant cites State v. Clements, 15 Or. 237, 248, 14 P. 410, 415, where Mr. Justice Thayer used this language, practically identical with some embodied in the instruction which was refused:

"Proof that a physician, in his professional treatment of a woman pregnant with a child, had used means, with the intent thereby to destroy the child, and the death of the child was thereby produced, is not evidence that the treatment was not necessary to preserve the life of the mother; nor, if it produced the death of the mother, that it was not an honest effort on the part of the physician to preserve her life."

If taken alone, this language would go far to sustain the defendant in his present contention, but this was not all that was said in that opinion on that subject. It continues:

"The experience of mankind shows that cases have often arisen in which such treatment has necessarily been resorted to, and, in the absence of other proof, the law, in its benignity, would presume that it was performed in good faith, and for a legitimate purpose. The extent of proof, to establish the negative averment in such a case, would necessarily be limited by the circumstances. It could not, in the nature of things, be made positive, except as aided by the fact that the accused was able to refute it absolutely, if untrue, and had failed to attempt to do so."

The language of the decision should be read in connection with the case then under consideration. In that instance there was little, if anything, proved beyond the bare fact that the defendant, a physician, had employed upon the decedent means intended to destroy the child by reason of which the mother died. In the instant case there is other proof which the jury is entitled to consider taking it out of "the absence of other proof" mentioned by Mr. Justice Thayer. For instance it was in evidence that the deceased woman was in ordinary good health. It is presumed "that things have happened according to the ordinary course of nature and the ordinary habits of life." L. O. L. § 799, subd. 28. Pregnancy and childbearing are not abnormal, but natural with womankind. The presumption that a pregnant woman would give birth to a child naturally and survive afterwards was sufficient to take the question to the jury on this point, and would be proper for them to consider as proof of the negative that it was not necessary to perform the operation in order to preserve the life of the mother. It was of course requisite to prove that the defendant used means with intent to destroy the child, but it would be irregular to single out that particular branch of the evidence and tell the jury that it was not sufficient to esablish the guilt of the defendant. It would be taking up the testimony by piecemeal and would mislead the jury if they were informed in detail that each particular part standing alone would be insufficient to justify conviction. As said by Mr. Justice Harris in Saratoga Inv. Co. v. Kern, 76 Or. 243, 249, 148 P. 1125, 1127:

"It was error to advise the jury of the effect of particular acts which, because of the nature of the controversy, constituted the cynosural facts, when there was evidence in the case which could rightfully be considered in the same relation." Stanley v. Smith, 15 Or. 505, 16 P. 174; Patterson v. Hayden, 17 Or. 238, 21 P. 129, 3 L. R. A. 529, 11 Am. St. Rep. 822; Crossen v. Oliver, 41 Or. 505, 69 P. 308; Kellogg v. Ford, 70 Or. 213, 139 P. 751.

Again it is urged that the court did wrong to the defendant by not giving this charge to the jury:

"The state has produced several witnesses who have attempted to narrate certain statements made to them or in their presence by the defendant. All of such statements so given by the state's witnesses must be taken together, as well that part which makes for the defendant as that which makes against him, and if any part of such testimony is in favor of the defendant, and it is not apparently improbable or untrue when considered with all the other evidence in the case, then such part of defendant's statement in his favor is entitled to as much consideration from you as a part of his testimony."

This instruction apparently is supported by some decisions in Illinois and Texas: Jones v. State, 29 Tex.App. 20, 13 S.W. 990, 25 Am. St. Rep. 715; Burnett v. People, 204 Ill. 208, 68 N.E. 505, 66 L. R. A. 304, 98 Am. St. Rep. 206. tt v. State, 53 Tex. Cr. R. 281, 109 S.W. 138, which goes no further than to establish the general rule that when part of the statement is introduced by one party the other is entitled to the remainder, but no intimation is given about the weight to be attributed to the portion favorable to the defendant. The rule on this subject is aptly stated in State v. Novak, 109 Iowa, 717, 733, 79 N.W. 465, 471:

"The court gave the following instruction: 'Where the verbal admission of a person charged with a crime is offered in evidence, the whole of the admission must be taken together, as well as that part which makes for the accused as that which may make against him, and if the part of the statement in favor of the defendant is not disproved, and is not apparently improbable or untrue, when considered with all the other evidence in the case, then such part of the statement is entitled to as much consideration from the jury as any other part of the statement; but the jury is not obliged to believe or disbelieve

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