State v. Bogue

Decision Date07 October 1893
Citation52 Kan. 79,34 P. 410
PartiesTHE STATE OF KANSAS v. CHARLES BOGUE
CourtKansas Supreme Court

Appeal from Ellis District Court.

THE defendant and one Nathaniel Kidd were jointly charged by information in 16 counts with the crime of manslaughter in the first degree. A separate trial was demanded. The defendant was convicted on the thirteenth count, and sentenced to 15 years in the penitentiary. Afterward, and at the same term of court, Kidd was tried and acquitted. The crime with which Bogue and Kidd were charged was causing the death of Pauline Sweitzer, by the use of instruments and the administration of certain drugs, for the purpose of procuring an abortion. The verdict was rendered on the 21st day of January, 1893. On the same day, a motion was filed for a new trial, upon the following grounds:

"1. Because the court erred in permitting illegal testimony to be given to the jury herein over the objections of the defendant.

"2. The verdict has been decided by means other than a fair expression of opinion on the part of all the jurors.

"3. The court misdirected the jury in material matters of law over the objections of the defendant, which were duly excepted to by him at the time.

"4. The verdict is contrary to law and evidence."

This motion was heard and overruled, and on the same day that the verdict was rendered the defendant was sentenced. Afterward on the 30th day of January, counsel who appear here came into the case, and another motion for a new trial was filed alleging, among other grounds, the rejection of legal testimony offered by the defendant, and setting up various matters as an excuse for the failure of defendant's counsel to include certain grounds in his first motion for a new trial. On this motion, testimony was introduced, and the motion was overruled by the court. Afterward, on the 15th day of March, 1893, at an adjourned session of the same term of court, a further motion was filed by the defendant, alleging that Nathaniel Kidd was charged as principal in the crime and Bogue as accessory; that since the conviction of Bogue Kidd had been tried and acquitted, and asking the court, for that and other reasons stated in the motion, to set aside the judgment. On the hearing of this motion, the journal entry, showing the trial and acquittal of Kidd on the 7th of February, 1893, was introduced in evidence. This motion was also overruled. On the trial, H. B. Kohl, the coroner, who had held an inquest on the body of Pauline Sweitzer, testified, over the objection of the defendant, as follows:

"Ques. Now, did Doctor Kidd come before that coroner's inquest? Ans. He came there. He was a voluntary witness, not on a subpoena.

"Q. What happened after he got there? What was said? State all that was said. A. Doctor Kidd was asked what Pauline Sweitzer died of; his answer was, first, of heart failure. One of the jurors, M. M. Fuller, asked the doctor, 'What did you do for that? What did she die with? What was the cause of her death?' He says, 'Heart failure.' 'Did you give her medicine?' Fuller asked which I do believe I don't know the court may censure me

"Q. What did he say to that? A. He says, 'Yes, sir; I gave her some medicine.' The juror asked, 'What did you give her?' He says, 'Antipyrine, antikamnia, subnitrate of bismuth, sulphate of morphia, sulphate of quinine, phenacitine.' At the time that

"Q. Did Doctor Kidd say anything else at that time? A. Yes, sir.

"Q. What was it? A. He said that he had been called the day before, and that Pauline was troubled with heart failure, and that on arriving there he found she had inflammation of what he called the stomach.

"Q. Which he called inflammation of the stomach -- was that all? A. He says he was there only twice, and that he could not do very much for her.

"Q. Anything else? A. He said her heart failed to act, and he was there in the morning, and found Pauline very low. No more questions were asked Doctor Kidd after that."

The defendant was not present at the time these statements were made by Doctor Kidd, and the admission of all this testimony was duly excepted to. The defendant afterward offered Doctor Kidd as a witness in his behalf, but his testimony was excluded, on the ground that he was incompetent to testify. Bogue appeals.

Judgment reversed and a new trial awarded.

J. G. Mohler, for appellant:

The court materially erred in refusing to permit appellant's codefendant, Nathaniel Kidd, to testify as a witness in his behalf. The State v. Sterns, 28 Kan. 158, 159; Moffit v. The State, 2 Humph. 99; Jones v. The State, 1 Kelly (Ga.), 610; United States v. Henry, 4 Wash. Cir. Ct. 428; Garrett v. The State, 6 Mo. 1; The State v. Chio Chiagk, 92 id. 395, 409; Noland v. The State, 19 Ohio 131, 134; Allen v. The State, 10 Ohio St. 287, 303.

"A witness is clearly competent, although he may be charged with the same offense in a spearate indictment." Noland v. The State, 19 Ohio 134; 1 Greenl. Ev., § 379.

Death is not the "ordinary and natural consequence" of an abortion, and appellant should not be held responsible for it, as he administered no drugs or medicines to, nor used any instruments on, Pauline Sweitzer to produce an abortion. Commonwealth v. Adams, 127 Mass. 15; Rufer v. The State, 25 Ohio St. 464, 473.

The court below also erred in permitting the state to prove by the witness Belle Healey statements made to her by Doctor Kidd, after the death of Pauline Sweitzer, not in the presence of appellant. Rufer v. The State, 25 Ohio St. 471-476.

We claim that the court erred in overruling defendant's motions to set aside and vacate judgment and sentence, etc., in the nature of a writ of error coram vobis. That the court could and should entertain these motions, and that the practice is proper, we cite the following authorities: The State v. Hughes, 35 Kan. 626, 632, 633; The State, ex rel., v. Sowders, 42 id. 312; Chinn v. Bretches, 42 id. 316, 318; 1 Bish. Cr. Pro., §§ 1298, 1342; The King v. Price, 6 East, 323; Huntington v. Finch, 3 Ohio St. 447; McCarty v. The State, 44 Ind. 214, 217.

Can there be an accessory before the fact without a principal? If not, then, so far as the accessory is concerned, it is in the nature of a joint offense, in which he cannot be guilty except his codefendant be guilty. The acquittal of the principal, Kidd, requires the acquittal and discharge of the accessory before the fact, Bogue. Ohio v. Foy & McLaughlin, Tappan's Rep. 103; The State v. Bain, 112 Ind. 335; Delaney v. The People, 10 Mich. 241; Baumer v. The State, 49 Ind. 544; Bowen v. The State, 6 So. Rep. 459; McCarty v. The State, 44 Ind. 214. The last-cited case is almost "on all fours" with the case at bar. See, also, Gen. Stat. of 1889, ch. 119, § 3; Ogden v. The State, 12 Wis. 533.

In the case in hand, while the accessory was finally convicted and sentenced before the acquittal of the principal, yet "the term of the court had not passed at which judgment was rendered against him, and the court had the common authority to set it aside," and should have done so on the motion and showing of the appellant, and its refusal to do so is reversible error. The State v. Ricker, 29 Me. 84; Pettes v. Commonwealth, 126 Mass. 242; People v. Gray, 25 Wend. 465; Holmes v. Commonwealth, 25 Pa. 221; Ulmer v. The State, 14 Ind. 52; Baxter v. People, 3 Gilm. 368; Yoe v. People, 49 Ill. 410; The State v. Comstock, 46 Iowa 265.

John T. Little, attorney general, Wm. L. Aaron, county attorney, and Chas. A. Hiller, for The State:

It will be admitted that, if Kidd and Bogue had been jointly tried as charged in the information, and had not claimed the benefit of separate trials, which entailed consequent disadvantages on the prosecution, each could have testified for himself, and thus incidentally for each other.

The Georgia case of Jones v. The State, 1 Kelly, 610, overlooks the distinction between accomplices jointly indicted and those either separately indicted or not indicted at all, and is contrary to the great weight of authority.

The decision in Noland v. The State, 19 Ohio 134, is an obiter dictum, and the other cases against our position were decided upon statutes and legislation entirely different from our own.

Doctor Kidd was not the defendant on trial or examination, nor the husband or wife of such defendant, and hence, under the old rule at common law, his testimony was properly rejected. 1 Greenl. Ev., § 362, p. 363, and cases cited; 1 Bish. Crim. Proc., § 1020, and cases cited.

With regard to the statements of Kidd to Belle Healey, we remark that no exception was preserved by the defendant to the admission of this evidence.

Counsel for the appellant has faithfully and laboriously gathered a number of decisions to show that the court could have set aside the judgment during the term and granted a new trial. We do not dispute the proposition, so ably presented, that while the judgment is in fieri, or, as Lord Coke expresses it, "in the breast of the judges," the court may set it aside. But the cases, while admitting the power, all recognize the fact that this is a matter of discretion upon which no error will lie, except those cases where the rule formerly in vogue as to the principal and accessory applies. The refusal of the trial court to exercise its admitted power shows that, in its opinion, the verdict was just and right.

Counsel urges with much force that the appellant is merely an accessory, and must be discharged, because Kidd, the principal, was acquitted. He proceeds upon the assumption that the abortion was procured entirely by the use of instruments, ignoring the effects of the drugs and the finding of the jury that the abortion resulted from the use of both drugs and instruments. McCarty v. The State, 44 Ind 217, is relied upon...

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    ...§ 4314 (1882) (see State v. Lee, 91 Iowa 499, 501-502, 60 N.W. 119, 120 (1894)); Kan.Gen.Stat. § 5180 (1889) (see State v. Bogue, 52 Kan. 79, 86-87, 34 P. 410, 412 (1893)); Ky.Stat. § 1128 (1903) (see Commonwealth v. Hicks, 118 Ky. 637, 642, 82 S.W. 265, 266 (1904); La.Rev.Stat.Ann. § 14:24......
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